Pennsylvania WARN Act: Notice Triggers, Exceptions, and Penalties

The Pennsylvania WARN Act is really the federal Worker Adjustment and Retraining Notification Act as it operates in Pennsylvania: the state has no separate statute of its own, so the federal law and its regulations govern every covered layoff and closure here. Employers with 100 or more workers must give at least 60 calendar days’ written notice before a plant closing or mass layoff. Skip the notice and you can owe each affected worker up to 60 days of back pay and benefits, plus a civil penalty of up to $500 per day for failing to notify local government.

Which Employers Are Covered

A business is covered if it meets either of two size tests. The first: 100 or more full-time employees, not counting part-timers. The second: 100 or more employees including part-timers, who together work at least 4,000 hours per week, not counting overtime.¹

A “part-time employee” for this purpose is someone who averages fewer than 20 hours per week or has been employed for fewer than 6 of the last 12 months.¹ The count runs across the whole company, not just the location where cuts will happen. A business with 60 workers in Philadelphia and 50 in Pittsburgh is covered even if only the Philadelphia site is affected.

What Triggers a Notice

Two kinds of workforce reductions trigger WARN: plant closings and mass layoffs. The numbers are different for each.

Plant Closings

A plant closing happens when an employer shuts down a single employment site, or one or more facilities or operating units within a site, permanently or temporarily, and the shutdown causes 50 or more full-time employees to lose their jobs during any 30-day period.¹ The label is a little misleading. A “plant closing” can mean shutting one department or production line inside a facility that otherwise stays open, as long as that unit’s shutdown eliminates enough jobs.

Mass Layoffs

A mass layoff is a workforce reduction that isn’t a plant closing. It triggers notice when, during any 30-day period, the layoff affects either:

At least 50 full-time employees who also make up at least 33 percent of the active full-time workforce at the site, or
500 or more full-time employees, no matter what percentage of the workforce they represent.

The 500-employee threshold catches large employers off guard. A company with 5,000 workers at a single site that lays off 500 must give notice even though only 10 percent of the workforce is affected.¹

What Counts as an Employment Loss

“Employment loss” is broader than being fired. It covers three situations:

Termination, other than for cause, voluntary departure, or retirement.
A layoff that lasts longer than six months.
A cut of more than 50 percent in work hours during each month of any six-month period.

That last one is the sleeper. Cutting a full-time worker’s schedule to part-time hours for half a year counts the same as firing them under WARN.²

The 90-Day Aggregation Rule

You can’t dodge WARN by breaking a big cut into smaller rounds. If two or more groups at the same site each come in under the 50-employee minimum but together go over it, and the separations fall within any 90-day window, the law treats them as a single event unless the employer can show each round came from a genuinely separate cause.³ This is the trap for companies in a slow wind-down: 20 people go in January, 15 in February, 25 in March, and the three rounds get combined.

Who Gets the Notice

Written notice must go, at the same time, to three recipients:³

Affected employees or their union. If a collective bargaining agreement is in place, notice goes to the chief elected officer of the union. If there’s no union, each worker gets the notice directly.
The state dislocated worker unit. In Pennsylvania, that’s the Department of Labor & Industry.
The chief elected official of the local government where the site is located. If the employer pays taxes to more than one municipality, notice goes to the one receiving the highest taxes.³

What the notice must say depends on whether workers have union representation. A notice to a union representative must give the site name and address, a company contact’s name and phone number, whether the action is permanent or temporary, the expected date of the first separation along with an anticipated schedule, and the job titles of affected positions with the names of the workers currently in those jobs.⁴

If employees aren’t union-represented, the notice goes to each worker and must state whether the action is permanent or temporary, the expected dates for the closing or layoff and for the individual’s separation, whether bumping rights exist (meaning senior employees can displace junior ones), and a company contact for questions. It has to be written in language the employees can understand.⁴

Filing in Pennsylvania

Pennsylvania employers submit WARN notices through the Department of Labor & Industry’s Bureau of Workforce Development Partnership & Operations Rapid Response Service Team.⁵ The filing to the state does not replace the notices to employees (or their union) and the local government’s chief elected official; all three must go out together.⁶

When Less Than 60 Days’ Notice Is Allowed

Three narrow exceptions let an employer give shorter notice. None of them wipes out the obligation to notify. In every case, the employer must still give as much notice as it can and include a written explanation of why the full 60 days wasn’t possible.⁷

Faltering Company

This applies only to plant closings, not mass layoffs, and courts read it narrowly. The employer has to show all four of these: it was actively seeking specific financing or new business when 60-day notice would have been due; there was a realistic chance of landing it; the money or contract would have been enough to keep the site open; and the employer reasonably believed that announcing a potential closure would have scared the financing source away. The test looks at the company as a whole, so a single struggling facility inside a cash-rich corporation can’t use this exception.⁷

Unforeseeable Business Circumstances

This one covers closings and layoffs caused by events a reasonable employer couldn’t have anticipated when the 60-day clock started. The regulation calls for something “sudden, dramatic, and unexpected” that is outside the employer’s control. The Department of Labor’s examples include a major client abruptly canceling a key contract or a strike shutting down a critical supplier. The employer carries the burden of proving the event genuinely could not have been foreseen.⁷

Natural Disaster

No WARN notice is required when a plant closing or mass layoff results directly from a natural disaster such as a flood, earthquake, or drought.⁸ This is the only exception that can eliminate the notice obligation entirely rather than just shorten it.

Penalties for Failing to Comply

An employer that orders a closing or layoff without the required notice faces two separate kinds of liability.

Back Pay and Benefits

Each affected worker is entitled to back pay for every day the employer was in violation, at the higher of the worker’s average regular rate over the last three years or the worker’s final regular rate. The employer also has to cover the cost of benefits the worker would have received, including medical expenses that would have been covered under the company’s health plan. This liability runs for the length of the violation, up to a maximum of 60 days, and can never exceed half the total number of days the worker was employed by the company.⁹

The back pay figure is reduced by any wages the employer actually paid during the violation period, any voluntary unconditional payments to the worker, and any payments made to third parties on the worker’s behalf, such as health insurance premiums or pension contributions.¹⁰

Civil Penalty for Skipping the Local Government

On top of what’s owed to employees, an employer that fails to notify the local government faces a civil penalty of up to $500 for each day of the violation. The penalty is waived if the employer pays every affected employee the full amount owed within three weeks of ordering the shutdown or layoff.⁹ For a company that skipped the full 60 days, the local-government penalty alone can reach $30,000 before any employee claims come into the picture.

1
Office of the Law Revision Counsel. 29 USC 2101 – Definitions; Exclusions From Definition of Loss of Employment
2
Office of the Law Revision Counsel. 29 US Code 2101 – Definitions; Exclusions From Definition of Loss of Employment
3
Office of the Law Revision Counsel. 29 USC 2102 – Notice Required Before Plant Closings and Mass Layoffs
4
eCFR. 20 CFR 639.7 – What Must the Notice Contain
5
Commonwealth of Pennsylvania. Submit a Worker Adjustment and Retraining Notification (WARN) Notice
6
Pennsylvania Department of Labor and Industry. Worker Adjustment and Retraining Notification Act
7
eCFR. 20 CFR 639.9 – When May Notice Be Given Less Than 60 Days in Advance
8
Office of the Law Revision Counsel. 29 US Code 2102 – Notice Required Before Plant Closings and Mass Layoffs
9
Office of the Law Revision Counsel. 29 USC 2104 – Administration and Enforcement
10
Office of the Law Revision Counsel. 29 US Code 2104 – Administration and Enforcement