Workplace Policy Institute Client Alert: Falling Over the Fiscal Cliff

by Littler

As the January 1, 2013, "fiscal cliff" deadline fast approaches, the Senate may be close to a compromise "solution" as we push midnight tonight. Whether a deal will emerge that can pass the House and be signed by the President in time to avoid automatic tax increases and spending cuts remains to be seen. To help our clients prepare for what MIGHT HAPPEN, we are sending this alert regarding the potential effects of "sequestration" of federal funds.

Defense and other federal contractors stand to be significantly impacted by massive budget cuts scheduled to begin on January 2 unless Congress acts to prevent them. If the sequestration of federal funds occurs, affected employers face potentially dramatic cuts in federal contracts and, as a possible result, may need to implement significant furloughs or layoffs, or even close some facilities. The prospect of sudden and dramatic downsizing raises important employment law concerns, including Worker Adjustment and Retraining Notification (WARN) Act compliance and employee eligibility for unemployment insurance benefits.

Drawing on the input and advice of Littler attorneys with experience and insight in this area, Littler's Workplace Policy Institute has prepared this brief update for our clients. Please contact your usual Littler attorney for additional information.

The WARN Act

To avoid penalties, a required WARN notice generally must be given 60 days in advance (90 days in New York and the Virgin Islands) of a covered employment loss that occurs as part of a WARN-triggering job action (mass layoff or plant closing). A WARN notice must be specific, including such information as the employees who will be affected and the timing of the expected separation from employment. The notice may be given contingent on the occurrence of a future event, such as the potential but uncertain cancellation of a federal contract.

If layoffs are triggered by the occurrence of an unforeseeable business circumstance, such as a customer's unforeseeable cancellation of a contract, federal WARN permits an employer to give less than 60 days advance notice. This ability to shorten the notice period is available only if shorter notice is required by the circumstances, the employer gives the WARN notice as soon as possible under the circumstances, and certain other technical requirements are met. Practitioners differ as to whether sequestration would qualify for shortened notice under federal WARN. Two government-issued guidance documents, however, have expressed support for the applicability of the unforeseeable business circumstances provision under these circumstances, and encouraged employers not to issue layoff notices unnecessarily. 

On July 30, 2012, the U.S. Department of Labor (DOL) issued Training and Employment Guidance Letter No. 3-12, which offered guidance on the applicability of WARN to potential layoffs by federal contractors in the wake of sequestration. Among other things, the DOL's guidance letter concludes that, given the federal WARN unforeseeable business circumstances exception, employers would not be required to provide the full 60-day notice period and the obligation to provide notice would not be triggered until specific layoffs or facility closures became reasonably foreseeable. In addition to the DOL's guidance letter, the President's Office of Management and Budget (OMB) issued a memo on September 28, 2012, outlining additional measures intended to prevent the "potential for waste and disruption associated with issuance of unwarranted layoff notices." Specifically, the OMB stated that compensation, litigation, and other costs resulting from federal WARN Act liability for those employers who followed the DOL guidance letter would qualify as allowable costs and be covered by the contracting agency. 

Lawmakers and commentators have expressed concern and skepticism about the DOL's legal conclusions and the commitments made by the OMB. It is also not clear what degree of deference courts will give to the DOL's guidance letter, and employers may still find themselves subject to a court's individualized assessment of WARN compliance. The WARN-notice debate has also involved charges of political motivation on all sides. Some have charged that the DOL guidance letter was a partisan attempt to support the president, while others have said that employers who elected to issue contingent notices did so in an equally partisan attempt to elicit fear and criticism of the Obama administration.

The provisions of state mini-WARNs also must be considered as an employer decides whether to provide shortened WARN notice in reliance on the federal unforeseeable business circumstances provisions. Some state mini-WARNs do not include an express provision permitting such shortened notice. This is the case, for example, in California, Illinois, New Jersey, and the Virgin Islands.

Temporary furloughs of less than six months do not trigger a notice obligation under federal WARN. If a temporary furlough continues for more than six months, it is treated as an employment loss for federal WARN purposes retroactively to the time the furlough commenced, thus making it too late to issue timely WARN notices. A temporary furlough may be extended, however, for another period of less than six months, based on unanticipated circumstances. The extent to which temporary furloughs are an exception to obligations under state mini-WARNs is less well defined.

Employers potentially affected by sequestration who have not yet provided contingent WARN notices should promptly consult with counsel regarding the best compliance strategy. An optimal strategy will take into consideration both the developing facts regarding sequestration, and the foregoing WARN Act considerations.

Unemployment Insurance

Although there are variations from state to state, employees subject to layoff or unpaid leave following sequestration may be eligible for unemployment insurance benefits. Assuming that the layoff or unpaid leave lasts longer than the common seven-day waiting period, an employee in most states will be eligible for benefits so long as the employee: (1) was working and being compensated prior to sequestration; (2) is no longer working and no longer being compensated as a result of the sequestration; and (3) otherwise qualifies for unemployment insurance benefits.

Anticipating a brief period of layoff or unpaid leave following the January 2 deadline, some employers have inquired whether employees allowed to take accrued, paid leave during this time would still be eligible for unemployment benefits. If the employer allows employees to take accrued, paid leave under these circumstances and if the employee elects to use the paid time off, the employee generally will still be considered employed and, therefore, ineligible for unemployment compensation benefits. That analysis would change, however, if the employee elected to cash out, rather than use, any accrued leave. 

Other Potential Issues with a Short-Term Layoff or Furlough

There are other legal issues that an employer must consider if forced to place employees on temporary furlough. It is advisable to provide advance notice to employees and have employees sign an agreement regarding the terms of the furlough. If the employer wishes the time to be unpaid, it should expressly inform employees, preferably in writing, not to do work while on the furlough. Making or answering calls or email, checking voicemail, drafting documents, and similar tasks are considered work and non-exempt and exempt employees must be compensated for the time spent in such activities. Non-exempt employees may be compensated in hourly or less increments depending on the employer's policy, while exempt employees generally must be paid their full salary for the entire workweek if they perform work at any time during the workweek.

Some state laws require advance notice of changes in pay (the longest being a 30-day advance notice obligation in Missouri), and it is unresolved whether placing employees on an unpaid furlough may trigger those notice obligations. Employers arguably may have an excuse for failing to provide required notice for reasons similar to those addressed above related to WARN obligations, but employers should provide as much notice as possible to maintain defenses to these notice obligations. Employers also may have obligations to bargain with unions representing furloughed employees and may have obligations under existing individual employment agreements that should be considered. Finally, employers should consider whether to maintain benefit coverage during periods of a furlough, and how to administer such benefits during periods of time where employees are not working and not paid.

Ilyse Schuman, a Shareholder in the Washington, D.C. office, and Michael Lotito, a Shareholder in the San Francisco office, are Co-Chairs of Littler Mendelson's Workplace Policy Institute (WPI); Daniel Thieme is a Shareholder in the Seattle office. WPI is devoted to developing and influencing workplace legislative and regulatory developments at the federal and state levels. WPI provides the employer community with advocacy services, including litigation support. In addition, WPI closely monitors important labor, employment and benefits policy initiatives and provides clients, trade associations, and policymakers with timely and thoughtful analysis of the practical implications of such proposals. If you would like further information, please contact your Littler attorney at 1.888.Littler or, Ms. Schuman at, Mr. Lotito at, or Mr. Thieme at

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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