Employers are facing increasingly difficult business decisions as a result of COVID-19 and, in developing a plan of action, must take care to avoid the many risks for wage and hour litigation that may be asserted in the wake of those decisions, especially as they relate to the execution of temporary layoffs or furloughs. On March 17, 2020, Governor Newsom issued an unprecedented executive order significantly changing notice requirements for employers contemplating layoffs in California. This blog addresses two of the hidden risks that are potentially triggered at the outset of a furlough: (1) WARN notices under both Executive Order N-31-20 and federal WARN, and (2) the payment of wages, including accrued unused vacation or paid time off. Whether employers call it a furlough, a temporary layoff, or a shutdown, the legal analysis is largely the same.
Notification periods under WARN complicate furloughs, even with California’s executive order
In a mass layoff or plant closure situation, employers may be required to provide notice under the federal Worker Adjustment and Retraining Notification (WARN) Act and equivalent California WARN Act (collectively, the Acts). COVID-19 creates WARN compliance challenges for many employers. This is particularly true for employers who are required to quickly shut down operations by state or local mandate, such as bars and gyms in many California cities. These unique circumstances may create a tension with WARN obligations.
Both the federal WARN and California WARN require employers at a covered establishment to provide 60 days’ notice to covered employees prior to a closing or mass layoff, as defined in the Acts. The California WARN, modeled after the federal WARN, applies to a wider range of employees. There are a number of parameters, exceptions, and industry-specific guidelines under both the federal and California WARN. Of utmost importance here, however, is the fact that the California Court of Appeals has held in The International Brotherhood of Boilermakers v. NASSCO Holdings Inc. that California WARN applies to temporarily furloughed employees who have been furloughed for less than six months, even though the same furlough would not have triggered notice obligations under federal WARN which only applies to furloughs in excess of six months.