When employers are faced with the difficult decision of whether it is time to downsize, it is important to remember that advance notice may be required under the federal Worker Adjustment and Retraining Notification (WARN) Act. Over 20 states have adopted “mini” WARN Acts or similar statutes that create state-specific requirements that must be followed in addition to the federal WARN Act. A few weeks ago, Ohio joined its neighboring states, including Illinois, Tennessee, Wisconsin, Michigan, and Minnesota, by enacting its own WARN notice requirements.
As a general overview*, the federal WARN Act requires employers with 100+ employees to provide at least 60 days’ notice prior to a plant closure or mass layoff that impacts 50 or more employees at a single site of employment within a 30-day period. A “mass layoff” event occurs when (i) at least 50 individuals suffer a loss of employment and (ii) the number of individuals impacted represents at least 33% of active employees at the employment site. If there is a qualifying plant closure or mass layoff, employers must give notices to the (1) impacted employees and/or their union representative, (2) the designated state Dislocated Worker Unit, and (3) the chief elected official of a unit of local government where the employment site is located. Each notice must disclose specific information depending on who receives the notice.
Ohio’s WARN Act largely follows the federal WARN Act’s requirements. For example, the Ohio statute directly incorporates several of the federal definitions, including those for “employer,” “mass layoff," and “plant closure.” Ohio also requires employers to comply with the federal statute and relevant regulations, and states the requirements specified in the statute do not establish a different standard than that established by federal statutes and regulations. However, Ohio’s statute contains key differences from the federal statute.
- Ohio requires notices to be sent to (1) affected employees and/or their union representative, (2) the director of Ohio Department of Job and Family Services, (3) the chief elected official of the municipal corporation where the employment site is located, and (4) the chief elected office of the county where the employment site is located.
- Ohio’s statute tailors the contents of each notice to the recipient.
- Despite adopting the federal definition of “mass layoff”, Ohio requires notice when an employer lays off 50 or more employees at a single site of employment during any 30-day period. Unlike the federal statute, there is no requirement that those impacted make up at least 33% of the active workforce at that employment site.
- Ohio does not address the federal requirement to aggregate multiple layoffs at the same job site within a 90-day period to review the thresholds to trigger notice.
There is currently no guidance on how to resolve conflicts between the federal statute and Ohio’s statute. However, the Ohio WARN Act does allow the Ohio Department of Job and Family Services to issue additional guidance. We will keep you updated with any key developments in this area, as the failure to comply with either statute has the potential to be quite costly. Ohio incorporates the same penalties as the federal WARN Act, including paying impacted employees back wages and benefits for each day of violation and a penalty of up to $500 for each day of violation.
It is best practice to contact legal counsel prior to terminations of any size to ensure your business is using up to date documents and remains compliant with state and federal law.
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