Georgia WARN Act: Covered Employers, Notice, and Penalties

The Georgia WARN Act is really the federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 and following, because Georgia has no state-level mini-WARN statute of its own. Covered employers must give at least 60 days’ written notice before a plant closing or mass layoff. Since January 1, 2023, Georgia notices are filed with the Technical College System of Georgia rather than the Georgia Department of Labor, and that change trips up employers who rely on older guidance.

Which Employers Are Covered

Coverage turns on workforce size. You are covered if you employ 100 or more full-time workers. You are also covered if you employ 100 or more workers (full and part-time combined) who together work at least 4,000 hours per week, excluding overtime.¹

“Part-time” is defined more broadly than the label suggests. A worker is part-time if they average fewer than 20 hours per week, or if they have worked fewer than 6 of the 12 months preceding the date notice would be due, even if their hours during those months were full-time. Seasonal workers often land in this bucket.² Part-timers do not count toward the 100-employee test and are not counted when tallying who is affected by a closing or layoff. They do count for the 4,000-hour test, because that test looks at total workforce hours.

What Events Trigger the 60-Day Notice

Two types of events trigger WARN: plant closings and mass layoffs. The employee-count thresholds are different for each.

Plant Closings

A plant closing is the permanent or temporary shutdown of a single site, or of one or more operating units within a site, that causes an employment loss for 50 or more full-time employees within any 30-day period.¹ Part-time employees are not counted. A “site” can be a plant, an office, a warehouse, or any fixed location where employees report.

Mass Layoffs

A mass layoff is a workforce reduction at a single site that is not the result of a plant closing. It triggers notice during any 30-day period if either at least 500 full-time employees lose their jobs, or at least 50 full-time employees lose their jobs and that group is at least one-third of the site’s active full-time workforce.¹

The one-third piece is the detail people miss. A 200-person site cutting 60 workers hits both the 50-employee floor and the 33 percent mark, so notice is required. A 500-person site cutting the same 60 workers clears the 50 floor but not the one-third mark, so notice is not required unless the total climbs to 500.

Employment Loss Defined

Not every job change counts. WARN recognizes three forms of employment loss: a termination (other than for cause, a voluntary quit, or retirement), a layoff of more than six months, and a cut of more than 50 percent in an individual employee’s hours in each month of any six-month period.²

The 90-Day Aggregation Rule

You cannot dodge WARN by staggering a big layoff into small rounds. When two or more groups of employment losses at a single site each fall below the plant closing or mass layoff thresholds but happen within any 90-day window, the losses get added together. If the combined total crosses a threshold, notice is required unless the employer can prove the rounds resulted from separate and distinct causes.³ The burden of proof sits with the employer.⁴

When Less Than 60 Days’ Notice Is Allowed

Three narrow exceptions can shorten (or in one case eliminate) the 60-day period. Each is an affirmative defense. Even when an exception applies, the employer must give as much notice as is practicable and must state in the notice itself why the period was shortened.

The faltering company exception applies only to plant closings. The employer must have been actively seeking capital or business that would have avoided or postponed the closing, and must have reasonably and in good faith believed that giving the full 60 days would have scared off the deal.³

The unforeseeable business circumstances exception covers closings or layoffs caused by conditions the employer could not reasonably have foreseen when notice would have been due. Federal regulations describe the trigger as a sudden, dramatic, and unexpected action or condition outside the employer’s control, and courts have generally required the event to have been probable, not just possible, before it counts as foreseeable.³

The natural disaster exception is the only one that can eliminate the notice requirement entirely. It applies when a flood, earthquake, drought, or similar event directly causes the closing or layoff.³

What the Notice Must Say

Notice to Georgia’s state dislocated worker unit and to the chief elected local official must include the affected site’s name and address, a company contact and phone number, whether the action is permanent or temporary, the expected date of the first separation and the schedule for later ones, job titles and the number of employees in each classification, whether bumping rights exist, and the name and address of any union representing affected workers.⁵

Notice to individual workers who are not represented by a union must be written in language the employees can understand and must state whether the action is permanent or temporary, when the closing or layoff will begin, the specific separation date for that employee, whether bumping rights exist, and a company contact for questions.⁵

How to File a WARN Notice in Georgia

Since January 1, 2023, Georgia WARN filings go to the Technical College System of Georgia’s Office of Workforce Development, not the Georgia Department of Labor. Employers submit through the Georgia WARN Filing Portal at tcsg.edu/warn. The person filing must be authorized by the employer to do so. Filed notices are public records and are posted on the TCSG website at least 60 calendar days before the layoff date.⁶

Additional correspondence can be mailed to the Office of Workforce Development, ATTN: State Rapid Response Unit, Technical College System of Georgia, 1800 Century Place NE, Suite 150, Atlanta, Georgia 30345-4304. A copy of the notice must also go to the chief elected official of the local government where the site is located. If the site sits in more than one jurisdiction, the notice goes to the one the employer paid the most taxes to in the previous year.³

For layoffs of 25 or more workers that do not meet the federal thresholds, TCSG accepts voluntary filings, which opens the same rapid response services to affected employees. For smaller layoffs, employers can email Georgia’s Rapid Response Team at rapidresponse@tcsg.edu.⁷

WARN Duties When a Business Is Sold

In a sale, the timing of the layoff relative to the closing date decides who owes notice. The seller is responsible for any plant closing or mass layoff up to and including the effective date of sale. After that date, the buyer takes over. Every employee of the seller (other than part-time workers) is treated as an employee of the buyer immediately after the sale, so the buyer also inherits the headcount for the 100-employee coverage test.⁸

That creates a practical trap for buyers. If you plan to lay off workers 45 days after closing, the 60-day clock forces you to issue notices 15 days before you officially own the business. Purchase agreements can allocate the responsibility between the parties, but the employer at the moment of the actual employment loss is the one on the hook to the workers.

Penalties for Missing Notice

An employer that orders a plant closing or mass layoff without proper notice faces two kinds of liability: payments to affected workers and a civil penalty payable to the local government.

Back Pay and Benefits

For each day of the violation, the employer owes each affected full-time employee back pay at the higher of the employee’s final regular rate or the employee’s average regular rate over the last three years. On top of wages, the employer owes the value of benefits under any ERISA-covered plan, including medical expenses that would have been covered had the loss not occurred. Liability runs for the length of the violation, capped at 60 days, and cannot exceed half the number of days the employee actually worked for the employer.⁹

The back pay figure is reduced by wages the employer actually paid during the violation period, any voluntary unconditional payments to the employee, and any payments the employer made on the employee’s behalf to third parties, such as health premiums or pension contributions.⁹

Civil Penalty and Attorney Fees

An employer that fails to notify the local government faces a separate civil penalty of up to $500 per day for each day of the violation. That penalty is waived if the employer pays every affected employee the full back pay and benefits owed within three weeks of ordering the shutdown or layoff.⁹

If the employer proves to the court’s satisfaction that the violation was made in good faith and that it had reasonable grounds to believe it was complying, the court has discretion to reduce the liability or penalty. Courts may also award reasonable attorney fees to the prevailing party.⁹

1
Office of the Law Revision Counsel. 29 USC Chapter 23 – Worker Adjustment and Retraining Notification
2
eCFR. 20 CFR 639.3 – Definitions
3
Office of the Law Revision Counsel. 29 USC 2102 – Notice Required Before Plant Closings and Mass Layoffs
4
U.S. Department of Labor. WARN Advisor
5
eCFR. 20 CFR 639.7 – What Must the Notice Contain
6
Technical College System of Georgia. Georgia Layoff and Closure Notification Form
7
Technical College System of Georgia. Rapid Response
8
Office of the Law Revision Counsel. 29 USC 2101 – Definitions, Exclusions From Definition of Loss of Employment
9
Office of the Law Revision Counsel. 29 USC 2104 – Administration and Enforcement of Requirements