Labor & Employment Law Daily Remote employees failed to plausibly allege they were ‘mobile workers’ under WARN Act reg
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Tuesday, March 17, 2020

Remote employees failed to plausibly allege they were ‘mobile workers’ under WARN Act reg

By Wayne D. Garris Jr., J.D.

The proposed class of plaintiffs was made up of 1,500 employees who worked from home for a federal contractor but reported to a management team in Virginia.

Granting an employer’s motion to dismiss a WARN Act putative class action seeking back pay and benefits, a federal district court in Virginia held that the plaintiffs failed to plausibly allege they were “mobile workers” for purposes of meeting the WARN Act’s single site of employment requirement. After they were laid off without receiving 60 days’ notice, three remote employees filed suit alleging violations of the WARN Act. The court, relying on DOL regulations and the Fourth Circuit’s decision in Meson v. GTX Techs. Servs. Corp., held that the “single site of employment” requirement only applied to mobile workers “without a regular, fixed place of work.” The complaint failed to sufficiently allege that the employees met the definition of mobile worker established in Meson, thus the employer was entitled to dismissal (Piron v. General Dynamic’s Information Technology, Inc., March 10, 2020, Payne, R.).

The employees worked in the employer’s Civil and Homeland Security Group as investigators and reviewers to perform background checks for the Office of Personnel Management. The employees, and the members of the putative class, all worked remotely but reported to managers located in the employer’s Falls Church, Virginia, office.

After determining that its work for OPM would soon end, the employer began to lay off employees in the Civil and Homeland Security Group. The first set of employees were sent layoff notices on June 19, 2019; they were terminated on July 3. The final set of employees were notified on August 22 and 26, 2019, and terminated on September 5 or 13.

The employees filed suit alleging that the employer violated the WARN Act by failing to provide 60 days’ advance written notice of termination to those who worked remotely. The employer moved to dismiss the complaint.

“Single site of employment.” The WARN Act imposes the 60-day notice requirement for “mass layoffs.” The statute defines a mass layoff as “a reduction in force which results in an employment loss at a single site of employment during any 30-day period for at least 50 employees.” The governing DOL reg defines “single site of employment” as “either a single location or a group of contiguous locations.” The issue, the court noted, was whether the employees sufficiently pleaded that they and the putative class were employed at a single site of employment.

The complaint. In the complaint, the employees alleged that they all worked remotely until they were terminated and that they worked at the employer’s Falls Church, Virginia, location. This was sufficient, they argued, to establish that they all worked at single site of employment—the Falls Church office.

DOL regulations. The DOL’s regulation regarding the single site of employment for employees in non-traditional settings defines the single site of employment for employees “whose primary duties involve work outside any of the employer’s regular employment sites” as the location “to which they are assigned as their home base, from which their work is assigned, or to which they report.” The employees contended that their complaint alleged enough facts to meet the regulatory definition.

Mobile worker. Unpersuaded, the court pointed to Meson v. GTX Techs. Servs. Corp. in which the Fourth Circuit held that the DOL regulation at issue only applied to mobile workers—whom the court defined as employees “without a regular, fixed place of work.” Here, the employees failed to allege facts from which it could plausibly be found they were mobile workers. The employees alleged that they worked remotely, but this was insufficient to meet the standard established in Meson.

For their part, the employees argued that Meson should not control because the Fourth Circuit failed to interpret the section of the DOL regulation that states that the WARN Act applies to workers “whose primary duties involve work outside of the employer’s regular employment sites.” The court noted, however, that the Fourth Circuit acknowledged the regulation could be read to cover any employee who leaves the office, but the Meson court stated “we believe it was intended to apply only to truly mobile workers without a regular, fixed place of work.”

Amended complaint? The motion to dismiss was granted because the employee’s allegations failed to meet the standard established by Meson. However, the court stated that the employees could filed a Second Amended Complaint if there are additional facts that had not been pleaded that would meet the requirements of Meson.

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