[Congressional Record Volume 155, Number 102 (Thursday, July 9, 2009)]
[Extensions of Remarks]
[Page E1702]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              INTRODUCTION OF THE FOREWARN ACT (H.R. 3042)

                                 ______
                                 

                          HON. JOHN M. McHUGH

                              of new york

                    in the house of representatives

                         Thursday, July 9, 2009

  Mr. McHUGH. Madam Speaker, I rise today regarding the Forewarn Act 
(H.R. 3042), which was introduced on June 25, 2009, in an effort to 
help American workers by updating and improving the Worker Adjustment 
and Retraining Notification (WARN) Act (P.L. 100-379). I am pleased to 
have had the opportunity to work with the Gentleman from California, 
Mr. Miller, the Chairman of the House Committee on Education and Labor, 
to craft this important legislation.
  Congress enacted the WARN Act over two decades ago in August 1988 in 
an effort to help American workers better prepare for, and overcome the 
difficulties resulting from the loss of a job due to a mass layoff or 
plant closure. Specifically, through the WARN Act, Congress required 
that employers give workers 60 days advance notice of mass-layoffs to 
facilitate their efforts to find a new job, obtain retraining, or 
otherwise prepare for the significant consequences of lost employment. 
Simultaneously, to maximize the assistance provided to workers under 
such difficult circumstances, Congress also required the same 60-day 
notice be provided to state dislocated worker entities and the chief 
elected official of the pertinent local government.
  Last Congress, I was prompted to closely review the WARN Act and its 
requirements in the wake of a decision by the General Motors (GM) 
Corporation to phase out 500 jobs and close its Powertrain facility in 
Massena, New York, which I represent. As a result of this examination, 
on September 25, 2007, I introduced the Forewarn Act of 2007 (H.R. 
3662) to strengthen the WARN Act by expanding its scope and increasing 
its notice requirements to 90 days. Additionally, H.R. 3662 sought to 
enhance compliance by increasing the back pay penalty, clarifying that 
the notice period should be determined by the use of ``calendar'' 
rather than ``business'' days, and giving the Secretary of Labor or 
appropriate state attorney general the ability to enforce the law. I 
was later pleased to vote for similar provisions when the House 
considered the Trade and Globalization Assistance Act of 2007 (H.R. 
3920) authored by Mr. Miller to reauthorize the Trade Adjustment 
Assistance Act. Unfortunately, H.R. 3920 did not become law before the 
conclusion of the 110th Congress.
  Since that time, economic circumstances have reinforced the need to 
modernize and expand the WARN Act. From December 2007 through May 2009, 
seven million Americans have become unemployed and in the 11 counties 
encompassed by New York's 23rd Congressional District, over 34,000 
people are without work. Moreover, during that timeframe, there have 
been 37,059 mass layoffs across the nation involving over 3.8 million 
workers. In the face of such circumstances, it is incumbent upon 
Congress to ensure that American workers have as much notice as 
practicable and that the law providing such notice and associated 
rights is understandable and enforceable.
  Thus, as the Gentleman from California and I reviewed the WARN Act, 
one of our goals was to clarify provisions that had caused confusion 
and resulted in litigation. For example, the question of whether the 
notice period required under the Act was to be determined by counting 
``calendar'' days or ``business'' days has long been litigated. In our 
recently introduced bill (H.R. 3042), we seek to clarify that 
``calendar'' days are indeed to be used when calculating the notice 
period. Likewise, there has been confusion as to whether or not an 
employer's ``good faith'' could be used as a complete defense to 
liability under the Act. When Congress enacted the WARN Act, it clearly 
intended that an employer's good faith should only be used by a court 
to reduce the damages owed--not to entirely eliminate liability--and we 
have sought to reinforce Congress' original intent through Section 
2(c)(3) of this proposal.
  As in the legislation (H.R. 3920) passed by the House in the 110th 
Congress, the current Forewarn Act (H.R. 3042) would require employers 
to give 90 days, rather than 60 days, notice of mass-layoffs and plant 
closures to employees. However, H.R. 3042 would expand the bill's reach 
to those employers who have 75 or more employees, including those who 
are new or part-time, and lower the threshold number of affected 
employees from 50 to 25 employees. In addition, our measure would 
require employers to give notice to the Governor of the pertinent 
state, as well as to the U.S. Secretary of Labor, who in turn would be 
required to give notice to the appropriate Senators and Members of the 
House of Representatives.
  To better ensure compliance, as H.R. 3662 and H.R. 3920 would have 
done last Congress, the current Forewarn Act (H.R. 3042) would increase 
the remedies available to employees in instances where proper notice 
was not given. For example, employees could receive damages in the 
amount of double back pay for each calendar day they were not provided 
with the requisite notice and the Secretary of Labor could initiate an 
enforcement action on their behalf. The bill (H.R. 3042) would make 
clear that the appropriate statute of limitations is two years and 
provide further protections to workers by precluding waivers of their 
rights under the law unless they were made by the Secretary of Labor, 
an attorney general, or with the assistance of counsel. We have also 
clarified that parent companies are ultimately responsible for the 
actions or inactions of their subsidiaries.
  Finally, to increase assistance to workers, our bill (H.R. 3042) 
requires employers to post notices regarding worker rights under the 
WARN Act and to permit on-site access to rapid response teams. 
Likewise, it requires the Secretary of Labor to prepare a guide of 
benefits and services that may be available to unemployed workers.
  Madam Speaker, as Congress continues its efforts to address our 
nation's current economic circumstances, it should favorably consider 
the Forewarn Act.

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