The federal Worker Adjustment and Retraining Notification Act (WARN) requires employers to provide 60 days’ advance notice to employees of qualifying mass layoffs or plant closures. WARN regulations require that the notice include the employees’ anticipated date of separation from employment. In many situations, the employer is not sure of the exact date that the employees will no longer be needed. A new decision from the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) cautions employers about the need to provide written notice of an extension of the separation date.

In Messer v. Bristol Compressors Int’l LLC, the employer provided affected employees with WARN notice and their anticipated date of separation. However, the company retained a number of workers for several months after that notice date. Among other claims, the workers sued claiming a WARN violation based on the failure of the employer to provide a written extension of the date that the facility would close. The district court dismissed the complaint, concluding that the workers were not prejudiced by the failure of the employer to provide the follow-up notice.

On appeal, the Fourth Circuit reversed this part of the lower court’s decision, remanding the claim for further proceedings. In its decision, the Fourth Circuit noted that the WARN statute does not require a demonstration of prejudice for employees to claim violation of the follow-up notice requirements. This was not a case of a mistake by the employer because it could have provided the updated closing date when it became aware that this would extend beyond the original notice date.

If the plaintiffs ultimately prevail on this claim, the question becomes what damages they would be entitled to under WARN. Presumably, the workers could have quit at any time if they had found other work. The ambiguous last date of employment could have interfered with their preparation for loss of employment, but it is not clear how this resulted in monetary loss. Regardless, employers should be scrupulous about providing employees (and government agencies) with updated WARN notices in the event that their plans change.

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