117 S4429 IS: Fair Warning Act of 2022
U.S. Senate
2022-06-16
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
II
117th CONGRESS
2d Session
S. 4429
IN THE SENATE OF THE UNITED STATES
June 16, 2022
Mr. Brown (for himself and Mrs. Murray) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions
A BILL
To amend the Worker Adjustment and Retraining Notification Act to support workers who are subject to an employment loss, and for other purposes.
1.

Short title
This Act may be cited as the “Fair Warning Act of 2022”.
2.

Definitions; provision of notice of site closings and mass layoffs
(a)

WARN Act amendments
Sections 2 and 3 of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101; 2102) are amended to read as follows:
“2.

Definitions; exclusions from definition of loss of employment
(a)

Definitions
As used in this Act:
(1)

Affected employee
The term affected employee means a full-time or part-time employee who may reasonably be expected to experience an employment loss as a consequence of a proposed site closing or mass layoff by the employee's employer.
(2)

Employer
(A)

In general
The term employer means any business enterprise of one or more entities that—
(i)
employs 50 or more employees, including part-time employees, in the aggregate; or
(ii)
has an annual payroll of at least $2,000,000.
(B)

Multiple entities
(i)

In general
In the case of a business enterprise of more than one entity, the entity subject to the requirements under this Act as an employer of an affected employee shall be the entity that directly employs such employee.
(ii)

Parents, affiliates, and contracting companies
A parent, affiliate, or contracting company of the entity described in clause (i) may also be subject to the requirements under this Act as an employer of the affected employee described in such clause based on the degree of control or integration the parent, affiliate, or contracting company exercises outside of or at the single site of employment at which the site closing or mass layoff occurred. Such control or integration shall be indicated by such factors as—
(I)
common ownership or financial control;
(II)
common directors or officers;
(III)
de facto exercise of control over the circumstances relating to such site closing or mass layoff;
(IV)
unity of personnel policies emanating from a common source; or
(V)
dependency of operations.
(C)

Additional definitions
For purposes of subparagraph (B)—
(i)
the term contracting company means an ultimate or intermediate client of an independent contractor or a provider of financial services that participates directly or indirectly in making decisions that affect the provision of notice required under this Act; and
(ii)
the term parent means an ultimate owner or intermediate owner, regardless of amount of ownership interest, that participates directly or indirectly in making decisions that affect the provision of notice required under this Act.
(D)

Consideration
In allocating liability under this Act among multiple entities of a business enterprise, substantial weight shall be given to any decisionmaking responsibility an entity had for the failure to provide notice to affected employees as required under this Act.
(3)

Employment loss
Subject to subsection (b), the term employment loss means—
(A)
an employment termination, other than a discharge for cause, voluntary departure, or retirement;
(B)
a layoff through a mass layoff or site closing that is not a temporary mass layoff or temporary site closing in compliance with the requirements under paragraphs (2) and (3) of section 3(d); or
(C)
a reduction in hours of work of more than 50 percent during each month of any 90-day period that is not part of a short-time compensation program provided in the case of such a temporary mass layoff or temporary site closing.
(4)

Mass layoff
(A)

In general
The term mass layoff means a reduction in force that results in an employment loss during any 90-day period—
(i)
for 10 or more employees of an employer at a single site of employment, as calculated under subparagraph (B); or
(ii)
for 250 or more employees of an employer, irrespective of employment site.
(B)

Calculation
The number of employees at a single site who suffer an employment loss shall be calculated in a manner that includes—
(i)
all such employees who work at the physical location of the site; and
(ii)
all such employees who work remotely and—
(I)
are assigned to or otherwise associated with the site;
(II)
receive assignments or training from the site;
(III)
report to a manager associated with the site; or
(IV)
whose job loss was a foreseeable consequence of a reduction in force at the site.
(5)

Representative
The term representative means an exclusive representative of employees within the meaning of section 8(f) or 9(a) of the National Labor Relations Act (29 U.S.C. 158(f); 159(a)) or section 2 of the Railway Labor Act (45 U.S.C. 152).
(6)

Secretary
The term Secretary means the Secretary of Labor.
(7)

Short-time compensation program
The term short-time compensation program means—
(A)
a short-time compensation program, as defined in section 3306(v) of the Internal Revenue Code of 1986, that is operational; or
(B)
a program determined by the Secretary to be equivalent to a program described in subparagraph (A) that provides, in comparable amounts and with comparable restrictions to such a program, employees experiencing a temporary reduction in work hours with pro rata pay, unimpaired benefits, and supplemental income.
(8)

Site closing
The term site closing means the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, that results in an employment loss at the single site of employment during any 30-day period for 5 or more employees, calculated in the same manner as described in paragraph (4)(B).
(9)

Unit of local government
The term unit of local government means any general purpose political subdivision of a State which has the power to levy taxes and spend funds, as well as general corporate and police powers.
(b)

Exclusions from employment loss due to a site closing or mass layoff
An employee shall not be considered to have experienced an employment loss due to a site closing or mass layoff if the site closing or mass layoff is the result of the relocation or consolidation of part or all of the employer’s business and, prior to the site closing or mass layoff—
(1)
the employer offers to transfer the employee to a different site of employment within a reasonable commuting distance with no more than a 90-day break in employment; or
(2)
the employer offers to transfer the employee to any other site of employment regardless of distance with no more than a 90-day break in employment, and the employee accepts within 30 days of the offer or of the site closing or mass layoff, whichever is later.
3.

Notice required before site closings and mass layoffs
(a)

Notice to employees, State dislocated worker units, and local governments
An employer shall not order a site closing or mass layoff until 90 calendar days after the date on which the employer has served written notice of such an order to—
(1)
(A)
each representative of the affected employees as of the time of the notice; or
(B)
each affected employee;
(2)
the Secretary and the Governor of the State where the site closing or mass layoff is to occur; and
(3)
the State or entity designated by the State to carry out rapid response activities under section 134(a)(2)(A) of the Workforce Innovation and Opportunity Act (29 U.S.C. 3174(a)(2)(A)).
(b)

Duties upon receipt of notice
A State or designated entity that receives a notice under subsection (a)(3) shall—
(1)
make the information in the notice publicly available within the jurisdiction of the local government involved;
(2)
transmit a copy of the notice to each affected local area (as defined in section 3 of the Workforce Innovation and Opportunity Act (29 U.S.C. 3102)), so that the information in the notice can be distributed through activities under section 134(c)(2)(A)(iv)(I)(aa) of that Act (29 U.S.C. 3174(c)(2)(A)(iv)(I)(aa)); and
(3)
ensure that—
(A)
an appropriate labor-management committee described in section 3(51)(C) of the Workforce Innovation and Opportunity Act (29 U.S.C. 3102(51)(C)) has been established or is established not later than 20 days after receipt of the notice; and
(B)
an individual is designated, by not later than 20 days after receipt of such notice, to coordinate rapid response activities described in section 134(a)(2)(A)(i) of such Act, in consultation with the labor-management committee.
(c)

Reduction of notification period
(1)

Potential new business or financing
An employer may order the site closing of a single site of employment before the conclusion of the 90-day period described in subsection (a) if the employer can demonstrate that—
(A)
as of the date that notice would have been required, and continuing until it was provided, the employer was being offered, on acceptable terms, new business or financing in an amount which, if obtained, would have enabled the employer to avoid the site closing; and
(B)
had notice been given as of such date, the notice would have precluded the new business or financing.
(2)

Unforeseen circumstances
(A)

Natural disasters
The 90-day advance notice under subsection (a) shall not be required if the site closing or mass layoff is due directly to any form of natural disaster, such as a flood, earthquake, or a drought ravaging the farmlands of the United States.
(B)

Terrorist attacks
The 90-day advance notice under subsection (a) shall not be required if the site closing or mass layoff is due directly to a terrorist attack that affects the operation of the site.
(C)

Public health emergencies
The 90-day advance notice under subsection (a) shall not be required if the site closing or mass layoff is due directly to a catastrophic infectious disease outbreak or other public health emergency that affects the operation of the site.
(3)

Provision of notice
(A)

Potential new business or financing
An employer relying on paragraph (1) shall be liable under this Act for any portion of the 90-day period described in subsection (a) prior to the provision of notice in which it is unable to meet the requirements of such paragraph.
(B)

Other requirements
(i)

In general
An employer relying on paragraph (1) or (2) shall give as much notice as is practicable and at that time shall give a brief statement of the basis for reducing the notification period.
(ii)

Liability
An employer that fails to satisfy the requirements under clause (i) shall be liable under this Act for the full 90-day period described in subsection (a).
(d)

Temporary mass layoff or site closing
(1)

In general
A layoff through a temporary mass layoff or temporary site closing shall be treated as an employment loss under this Act as of the date of the commencement of the temporary mass layoff or temporary site closing unless the employer complies with the requirements under paragraphs (2) and (3).
(2)

Initial period of temporary mass layoff or site closing
With respect to the period of a temporary mass layoff or temporary site closing that has not been extended as described in paragraph (3), the employer shall—
(A)
at the commencement of such layoff or closing, provide a written notice as required under subsection (a) stating—
(i)
the date on which the employer expects to recall the affected employees to work, which date shall be less than 90 days after the date of such commencement; and
(ii)
that the employer will provide short-time compensation for the duration of such layoff or closing through a short-time compensation program;
(B)
as soon as practicable, provide short-time compensation through such program, which shall continue to be provided for the duration of the temporary mass layoff or temporary site closing; and
(C)
on or before the recall date stated under subparagraph (A)(i)—
(i)
in good faith, recall the affected employees for at least 90 days of employment;
(ii)
extend the period of the temporary mass layoff or temporary site closing in accordance with paragraph (3); or
(iii)
except as provided in paragraph (4)(C), terminate the affected employees with not less than 90 days’ notice.
(3)

Extension of period of temporary mass layoff or site closing
In the case the employer seeks to extend the period of a temporary mass layoff or temporary site closing beyond the recall date stated under paragraph (2)(A)(i) or a subsequent recall date as provided under this paragraph, the employer shall—
(A)
prior to the pending recall date, provide to each individual or entity described in subsection (a) a written notice of such extension, stating—
(i)
that the period of the temporary mass layoff or temporary site closing will be extended to a new recall date within 90 days of the pending recall date; and
(ii)
that the employer will continue providing short-time compensation as described in paragraph (2)(A)(ii);
(B)
continue providing short-time compensation as described in paragraph (2)(B); and
(C)
on or before such new recall date—
(i)
in good faith, recall the affected employees for at least 90 days of employment;
(ii)
further extend the period of the temporary mass layoff or temporary site closing in accordance with this paragraph; or
(iii)
except as provided in paragraph (4)(C), terminate the affected employees with not less than 90 days’ notice.
(4)

Temporary mass layoffs or site closings resulting in terminations
(A)

In general
In the case the period of a temporary mass layoff or temporary site closing, including any extensions of such layoff or closing, culminates in the employer terminating an affected employee with less than 90 days’ notice in violation of paragraph (2)(C)(iii) or paragraph (3)(C)(iii), the employer shall, except as provided in subparagraph (C), be liable to such employee for back pay and benefits as described in section 5 for each day, for up to a maximum of 90 days, the employer did not provide notice and short-time compensation as required under this subsection.
(B)

No reductions
Notwithstanding section 5(a)(2), no amount for which an employer is liable under subparagraph (A) shall be reduced by any payment received by an employee for short-time compensation during the period of the violation.
(C)

Exceptions
An employer may terminate an affected employee under paragraph (2)(C)(iii) or (3)(C)(iii) with less than 90-days' notice as described in such paragraph if the employer can demonstrate the existence of a circumstance described in paragraph (1) or (2) of subsection (c). The applicable requirements under paragraph (3) of such subsection shall apply with respect to any employer relying on such a circumstance in providing less than 90-days' notice under paragraph (2)(C)(iii) or (3)(C)(iii).
(e)

Determinations with respect to employment loss
(1)

Multiple groups
For purposes of this section, in determining whether a site closing or mass layoff at a single site of employment has occurred or will occur, employment losses for 2 or more groups at the single site of employment, each of which is less than the minimum number of employees specified in paragraph (4) or (8) of section 2(a) but which in the aggregate exceed that minimum number, and which occur within any 90-day period, shall be considered to be a site closing or mass layoff unless the employer demonstrates that the employment losses are the result of separate and distinct actions and causes and are not an attempt by the employer to evade the requirements of this Act.
(2)

Treatment of business sales
(A)

In general
In the case of a sale of part or all of an employer’s business, the seller shall be responsible for providing notice for any site closing or mass layoff in accordance with this section up to and including the effective date of the sale. After the effective date of the sale of part or all of an employer’s business, the purchaser shall be responsible for providing notice for any site closing or mass layoff in accordance with this section.
(B)

Transfer of employees
In the case of a sale of part or all of an employer's business, and notwithstanding any other provision of this Act, any person who is an employee of the seller as of the effective date of the sale shall be considered an employee of the purchaser immediately after the effective date of the sale.
(f)

Content of notices
An employer who is required to provide notice as required under subsection (a) shall include—
(1)
in each notice required under such subsection—
(A)
a statement of the number of affected employees;
(B)
the reason for the site closing or mass layoff;
(C)
whether the layoff is permanent or temporary and, if temporary, the date on which the employer expects to recall the affected employees to work;
(D)
the availability of employment at other establishments owned by the employer;
(E)
a statement of each employee’s rights with respect to wages and severance and employee benefits; and
(F)
a statement of the available employment and training services provided by the Department of Labor; and
(2)
in each notice required under such subsection (except for paragraph (1)(B) of such subsection), the names, addresses, and occupations of the affected employees.
(g)

Information regarding benefits and services available to employees
Concurrent with or immediately after providing the notice required under subsection (a)(1), an employer shall provide affected employees with information regarding the benefits and services available to such employees, as described in the guide compiled by the Secretary under section 13.
(h)

Access of rapid response teams
An employer who is required to provide notice under subsection (a) shall permit, during work hours, reasonable on-site access to any Federal, State, or local rapid response team under section 134(a)(2)(A) of the Workforce Innovation and Opportunity Act (29 U.S.C. 3174(a)(2)(A)) responsible for providing reemployment, training services, and related services to affected employees.
(i)

DOL notice to Congress
As soon as practicable and not later than 15 days after receiving notice under subsection (a)(2), the Secretary of Labor shall notify the appropriate Senators and Members of the House of Representatives who represent the area or areas where the site closing or mass layoff is to occur.”.
(b)

WIOA amendment regarding the provision of Information through local employment and training activities
Section 134(c)(2)(A)(iv)(I)(aa) of the Workforce Innovation and Opportunity Act (29 U.S.C. 3174(c)(2)(A)(iv)(I)(aa)) is amended by inserting before the semicolon the following: “and of information in notices described in section 3(a), and of access to the database established under section 5(e), of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2102(a); 2104(e))”.
3.

Exemptions
Section 4 of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2103) is amended to read as follows:
“4.

Exemptions
This Act shall not apply to a site closing or mass layoff if the closing is of a temporary facility or the closing or layoff is the result of the completion of a particular project or undertaking, and the affected employees were hired with the understanding that their employment was limited to the duration of the facility or the project or undertaking.”.
4.

Administration and enforcement of requirements
Section 5 of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2104) is amended—
(1)
in subsection (a)—
(A)
in paragraph (1)—
(i)
in the matter preceding subparagraph (A), by striking “plant” and inserting “site”;
(ii)
in subparagraph (A)—
(I)
in the matter preceding clause (i), by striking “each day” and inserting “each calendar day”; and
(II)
in clause (ii), by striking “and” after the semicolon;
(iii)
in subparagraph (B), by striking the period at the end and inserting “; and”;
(iv)
by inserting after subparagraph (B) the following:
“(C)
liquidated damages in an amount equal to 30 days of back pay, at the rate of compensation calculated under subparagraph (A).”; and
(v)
in the flush text following subparagraph (C) (as added by clause (iv)), by striking “60 days” and inserting “90 days”;
(B)
in paragraph (2)(A), by inserting “, which begins on the date of the employment loss” after “the violation”;
(C)
in paragraph (3), by inserting “the Secretary, a State, or” before “a unit of local government”;
(D)
in paragraph (4)—
(i)
by striking “which has violated this Act” and inserting “that has violated the provisions of section 3 with respect to the Secretary, a State, or a unit of local government”;
(ii)
by striking “omission that violated this Act” and inserting “omission that violated such provisions”;
(iii)
by striking “violation of this Act” and inserting “violation of such provisions”; and
(iv)
by striking “reduce the amount of the liability or penalty provided for in this section” and inserting “reduce the amount of the penalty under paragraph (3)”;
(E)
by striking paragraph (5) and inserting the following:
“(5)
A person (including a representative of employees, the State where the site closing or mass layoff is to occur, the entity designated by the State to carry out rapid response activities under section 134(a)(2)(A) of the Workforce Innovation and Opportunity Act (29 U.S.C. 3174(a)(2)(A)), or a unit of local government aggrieved under paragraph (1) or (3)) seeking to enforce the liability provided for in this section may, either for such person, for other persons similarly situated, or for both, bring suit in any district court of the United States for any district in which the violation is alleged to have occurred or in which the employer transacts business.”;
(F)
in paragraph (6), by striking “prevailing party” and inserting “prevailing plaintiff”; and
(G)
in paragraph (7), by striking “plant” and inserting “site”;
(2)
by redesignating subsection (b) as subsection (c);
(3)
by inserting after subsection (a) the following:
“(b)

Limitations
An action shall be brought under this section not later than 4 years after the date of the last event constituting the alleged violation for which the action is brought.”;
(4)
in subsection (c), as so redesignated, by striking “plant” and inserting “site”; and
(5)
by adding at the end the following:
“(d)

Exemption from liquidated damages
Notwithstanding subsection (a)(1)(C), an employer is not liable for the liquidated damages described in such subsection if the alleged site closing or mass layoff is caused by business circumstances (other than a financier’s decision) that were not contemplated nor should reasonably have been contemplated as of the 30th day before the site closing or mass layoff.
(e)

Database
(1)

Transmittals
A State or designated entity that receives a notice under section 3(a) shall transmit a copy of the notice to the Secretary.
(2)

Database
The Secretary shall create and maintain a publicly available database that provides information from notices transmitted under paragraph (1).
(3)

Contents of database
The database under paragraph (2) shall include—
(A)
for each notice transmitted under paragraph (1), a copy of the notice, the date of the notice, the name of the employer involved, the unit of local government affected by the closing or layoff involved, the number of employees so affected, the sector in which the layoff occurred (as identified by the North American Industry Classification System code), and the type of the closing or layoff;
(B)
a search function that allows users to identify the geographic, annual, and sectoral breakdown of the notices; and
(C)
a function that allows the data to be downloaded in a user-friendly format.
(4)

Access through website
The Secretary shall provide a link to the database through the internet website of the Department of Labor.”.
5.

Posting of notices
Section 11 of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101 note) is amended to read as follows:
“11.

Posting of notices
(a)

Posting of notices
Each employer shall post and keep posted, in conspicuous places upon its premises where notices to employees are customarily posted, a notice to be prepared or approved by the Secretary setting forth excerpts from, or summaries of, the pertinent provisions of this Act and information pertinent to the filing of a complaint under this Act.
(b)

Penalties
The Secretary may impose a civil penalty on any person who willfully violates this section of not more than $500 for each separate offense.”.
6.

Non-waiver of rights and remedies; information regarding benefits and services available to employees
The Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101 et seq.) is further amended by adding at the end the following:
“12.

Rights and remedies not subject to waiver
(a)

In general
The rights and remedies provided under this Act (including the right to file or participate in a class action under rule 23 of the Federal Rules of Civil Procedure in Federal court) are substantive and may not be waived, deferred, or lost pursuant to any agreement or settlement other than an agreement or settlement described in subsection (b).
(b)

Agreement or settlement
An agreement or settlement referred to in subsection (a) is an agreement or settlement negotiated by—
(1)
a private attorney on behalf of affected employees; or
(2)
a designated representative of affected employees under the National Labor Relations Act (29 U.S.C. 151 et seq.) or the Railway Labor Act (45 U.S.C. 151 et seq.).
13.

Information regarding benefits and services available to workers
(a)

In general
The Secretary of Labor shall maintain a guide of benefits and services that may be available to affected employees, including unemployment compensation, trade adjustment assistance, COBRA continuation coverage, and early access to training services and other services, including counseling services, available under title I of the Workforce Innovation and Opportunity Act (29 U.S.C. 3111 et seq.).
(b)

Availability of guide
The guide maintained under subsection (a) shall be available on the internet website of the Department of Labor and shall include a description of the benefits and services, the eligibility requirements, and the means of obtaining such benefits and services.
(c)

Transmission to employers
Upon receiving notice from an employer under section 3(a)(2), the Secretary shall immediately transmit such guide to such employer.”.
7.

Conforming amendments
(a)

Worker Adjustment and Retraining Notification Act
The Worker Adjustment and Retraining Notification Act is amended—
(1)
in the table of contents in section 1(b) (29 U.S.C. 2101 note)—
(A)
by striking the item relating to section 3 and inserting the following:
“Sec. 3. Notice required before site closings and mass layoffs.”;
(B)
by striking the item relating to section 11 and inserting the following:
“Sec. 11. Posting of notices.”; and
(C)
by adding at the end the following:
“Sec. 12. Rights and remedies not subject to waiver.
Sec. 13. Information regarding benefits and services available to workers.”; and
(2)
in section 7 (29 U.S.C. 2106), by striking “plant” and inserting “site”.
(b)

Other laws
Section 3110(a)(5) of the USEC Privatization Act (42 U.S.C. 2297h–8(a)(5)) is amended by striking “2101(a) (2) and (3) of title 29, United States Code” and inserting “paragraphs (2) and (3) of section 2(a) of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101(a)), as in effect on the day before the date of enactment of the Fair Warning Act of 2022”.