[House Report 110-410]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-410

======================================================================



 
EARLY WARNING AND HEALTH CARE FOR WORKERS AFFECTED BY GLOBALIZATION ACT

                                _______
                                

October 25, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3796]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 3796) to amend the Worker Adjustment and 
Retraining Notification Act to minimize the adverse effects of 
employment dislocation, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Early Warning and Health Care for 
Workers Affected by Globalization Act''.

SEC. 2. AMENDMENTS TO THE WARN ACT.

  (a) Definitions.--
          (1) Employer, plant closing, and mass layoff.--Paragraphs (1) 
        through (3) of section 2(a) of the Worker Adjustment and 
        Retraining Notification Act (29 U.S.C. 2101(a)(1)-(3)) are 
        amended to read as follows:
          ``(1) the term `employer' means any business enterprise that 
        employs 100 or more employees;
          ``(2) the term `plant closing' means the permanent or 
        temporary shutdown of a single site of employment, or of one or 
        more facilities or operating units within a single site of 
        employment, which results in an employment loss at such site, 
        during any 30-day period, for 25 or more employees;
          ``(3) the term `mass layoff' means a reduction in force at a 
        single site of employment which results in an employment loss 
        at such site, during any 30-day period, for 25 or more 
        employees.''.
          (2) Secretary of labor.--
                  (A) Definition.--Paragraph (8) of such section is 
                amended to read as follows:
          ``(8) the term `Secretary' means the Secretary of Labor or a 
        representative of the Secretary of Labor.''.
                  (B) Regulations.--Section 8(a) of such Act (29 U.S.C. 
                2107(a)) is amended by striking ``of Labor''.
          (3) Conforming amendments.--
                  (A) Notice.--Section 3(d) of such Act (29 U.S.C. 
                2102(d)) is amended by striking out ``, each of which 
                is less than the minimum number of employees specified 
                in section 2(a)(2) or (3) but which in the aggregate 
                exceed that minimum number,'' and inserting ``which in 
                the aggregate exceed the minimum number of employees 
                specified in section 2(a)(2) or (3)''.
                  (B) Definitions.--Section 2(b)(1) of such Act (29 
                U.S.C. 2101(b)(1)) is amended by striking ``(other than 
                a part-time employee)''.
  (b) Notice.--
          (1) Notice period.--
                  (A) In general.--Section 3 of the Worker Adjustment 
                and Retraining Notification Act (29 U.S.C. 2102) is 
                amended by striking ``60-day period'' and inserting 
                ``90-day period'' each place it appears.
                  (B) Conforming amendment.--Section 5(a)(1) of such 
                Act (29 U.S.C. 2104(a)(1)) is amended in the matter 
                following subparagraph (B), by striking ``60 days'' and 
                inserting ``90 days''.
          (2) Recipients.--Section 3(a) of such Act (29 U.S.C. 2102(a)) 
        is amended--
                  (A) in paragraph (1), by striking ``or, if there is 
                no such representative at that time, to each affected 
                employee; and'' and inserting ``and to each affected 
                employee;''; and
                  (B) by redesignating paragraph (2) as paragraph (3) 
                and inserting after paragraph (1) the following:
          ``(2) to the Secretary; and''.
          (3) Information regarding benefits and services available to 
        workers and dol notice to congress.--Section 3 of such Act (29 
        U.S.C. 2102) is further amended by adding at the end the 
        following:
  ``(e) 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 12.
  ``(f) DOL Notice to Congress.--As soon as practicable and not later 
than 15 days after receiving notification 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 
plant closing or mass layoff is to occur.''.
  (c) Enforcement.--
          (1) Amount.--Section 5(a)(1) of the Worker Adjustment and 
        Retraining Notification Act (29 U.S.C. 2104(a)(1)) is amended--
                  (A) in subparagraph (A)--
                          (i) by striking ``back pay for each day of 
                        violation'' and inserting ``two days' pay 
                        multiplied by the number of calendar days short 
                        of 90 that the employer provided notice before 
                        such closing or layoff'';
                          (ii) in clause (ii), by striking ``and'' at 
                        the end thereof;
                  (B) by redesignating subparagraph (B) as subparagraph 
                (C);
                  (C) by inserting after subparagraph (A) the 
                following:
          ``(B) interest on the amount described in subparagraph (A) 
        calculated at the prevailing rate; and''; and
                  (D) by striking the matter following subparagraph (C) 
                (as so redesignated).
          (2) Exemption.--Section 5(a)(4) of such Act (29 U.S.C. 
        2104(a)(4)) is amended by striking ``reduce the amount of the 
        liability or penalty provided for in this section'' and 
        inserting ``reduce the amount of the liability under 
        subparagraph (C) of paragraph (1) and reduce the amount of the 
        penalty provided for in paragraph (3)''.
          (3) Administrative complaint.--Section 5(a)(5) of such Act 
        (29 U.S.C. 2104(a)(5)) is amended--
                  (A) by striking ``may sue'' and inserting ``may,'';
                  (B) by inserting after ``both,'' the following: ``(A) 
                file a complaint with the Secretary alleging a 
                violation of section 3, or (B) bring suit''; and
                  (C) by adding at the end thereof the following new 
                sentence: ``A person seeking to enforce such liability 
                may use one or both of the enforcement mechanisms 
                described in subparagraphs (A) and (B).''.
          (4) Action by the secretary.--Section 5 of such Act (29 
        U.S.C. 2104) is amended--
                  (A) by redesignating subsection (b) as subsection 
                (d); and
                  (B) by inserting after subsection (a) the following 
                new subsections:
  ``(b) Action by the Secretary.--
          ``(1) Administrative action.--The Secretary shall receive, 
        investigate, and attempt to resolve complaints of violations of 
        section 3 by an employer in the same manner that the Secretary 
        receives, investigates, and attempts to resolve complaints of 
        violations of sections 6 and 7 of the Fair Labor Standards Act 
        of 1938 (29 U.S.C. 206 and 207).
          ``(2) Subpoena powers.--For the purposes of any investigation 
        provided for in this section, the Secretary shall have the 
        subpoena authority provided for under section 9 of the Fair 
        Labor Standards Act of 1938 (29 U.S.C. 209).
          ``(3) Civil action.--The Secretary may bring an action in any 
        court of competent jurisdiction to recover on behalf of an 
        employee the backpay, interest, benefits, and liquidated 
        damages described in subsection (a).
          ``(4) Sums recovered.--Any sums recovered by the Secretary on 
        behalf of an employee under subparagraphs (A), (B), and (D) of 
        section 5(a)(1) shall be held in a special deposit account and 
        shall be paid, on order of the Secretary, directly to each 
        employee affected. Any such sums not paid to an employee 
        because of inability to do so within a period of 3 years, and 
        any sums recovered by the Secretary under subparagraph (C) of 
        section 5(a)(1), shall be credited as an offsetting collection 
        to the appropriations account of the Secretary of Labor for 
        expenses for the administration of this Act and shall remain 
        available to the Secretary until expended.
          ``(5) Action to compel relief by secretary.--The district 
        courts of the United States shall have jurisdiction, for cause 
        shown, over an action brought by the Secretary to restrain the 
        withholding of payment of back pay, interest, benefits, or 
        other compensation, plus interest, found by the court to be due 
        to employees under this Act.
  ``(c) Limitations.--
          ``(1) Limitations period.--An action may be brought under 
        this section not later than 2 years after the date of the last 
        event constituting the alleged violation for which the action 
        is brought.
          ``(2) Commencement.--In determining when an action is 
        commenced under this section for the purposes of paragraph (1), 
        it shall be considered to be commenced on the date on which the 
        complaint is filed.
          ``(3) Limitation on private action while action of secretary 
        is pending.--If the Secretary has instituted an enforcement 
        action or proceeding under subsection (b), an individual 
        employee may not bring an action under subsection (a) during 
        the pendency of the proceeding against any person with respect 
        to whom the Secretary has instituted the proceeding.''.
  (d) Posting of Notices; Penalties.--Section 11 of the Worker 
Adjustment and Retraining Notification Act (29 U.S.C. 2101 note) is 
amended to read as follows:

``SEC. 11. POSTING OF NOTICES; PENALTIES.

  ``(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 chapter and information pertinent to the filing of a complaint.
  ``(b) Penalties.--A willful violation of this section shall be 
punishable by a fine of not more than $500 for each separate 
offense.''.
  (e) Non-Waiver of Rights and Remedies; Information Regarding Benefits 
and Services Available to Employees.--Such Act is further amended by 
adding at the end the following:

``SEC. 12. RIGHTS AND REMEDIES NOT SUBJECT TO WAIVER.

  ``(a) In General.--The rights and remedies provided under this Act 
(including the right to maintain a civil action) 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 the 
Secretary, an attorney general of any State, or a private attorney on 
behalf of affected employees.

``SEC. 13. INFORMATION REGARDING BENEFITS AND SERVICES AVAILABLE TO 
                    WORKERS.

  ``The Secretary of Labor shall maintain a guide of benefits and 
services which may be available to affected employees, including 
unemployment compensation, trade adjustment assistance, COBRA benefits, 
and early access to training and other services, including counseling 
services, available under the Workforce Investment Act of 1998. Such 
guide 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. Upon receiving notice from an employer under section 3(a)(2), 
the Secretary shall immediately transmit such guide to such 
employer.''.
  (f) Notice Excused Where Caused by Terrorist Attack.--Section 3(b)(2) 
of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 
2102(b)(2)) is amended by adding at the end the following new 
subparagraph:
  ``(C) No notice under this Act shall be required if the plant closing 
or mass layoff is due directly or indirectly to a terrorist attack on 
the United States.''.

SEC. 3. EXTENSION OF COBRA BENEFITS FOR CERTAIN INDIVIDUALS CERTIFIED 
                    AS TAA ELIGIBLE.

  (a) Amendments to the Employee Retirement Income Security Act of 
1974.--
          (1) Special rule for qualified taa eligible employees.--
                  (A) In general.--Section 602(2)(A) of the Employee 
                Retirement Income Security Act of 1974 (29 U.S.C. 
                1162(2)(A)) is amended--
                          (i) by moving clause (v) to after clause (iv) 
                        and before the flush left sentence beginning 
                        with ``In the case of a qualified 
                        beneficiary''; and
                          (ii) by inserting after clause (v) the 
                        following new clause:
                          ``(vi) Special rule for qualified taa 
                        eligible employees.--In the case of a 
                        qualifying event described in section 603(2), 
                        clauses (i) and (ii) shall not apply to a 
                        qualified TAA eligible employee (as defined in 
                        section 607(6)).''.
                  (B) Qualified taa eligible employee defined.--Section 
                607 of such Act (29 U.S.C. 1167) is amended by adding 
                at the end the following new paragraph:
          ``(6) Qualified taa eligible employee.--The term `qualified 
        TAA eligible employee' means a covered employee, with respect 
        to a qualifying event, if--
                  ``(A) the qualifying event is attributable to the 
                conditions specified in section 222 of the Trade Act of 
                1974 (19 U.S.C. 2272) based on which the Secretary of 
                Labor has certified a group of workers as eligible to 
                apply for adjustment assistance under subchapter A of 
                chapter 2 of title II of such Act;
                  ``(B) such certification applies to the covered 
                employee; and
                  ``(C) as of the date of such qualifying event the 
                covered employee has attained age 55 or has completed 
                10 or more years of service with the employer.''.
          (2) Conforming amendments.--Section 602(2)(A) of such Act (29 
        U.S.C. 1162(2)(A)) is further amended--
                  (A) in clause (i), by striking ``In the case of'' and 
                inserting ``Subject to clause (vi), in the case of''; 
                and
                  (B) in clause (ii), by striking ``If a qualifying 
                event'' and inserting ``Subject to clause (vi), if a 
                qualifying event''.
  (b) Effective Date.--
          (1) General rule.--The amendments made by this section shall 
        apply for plan years beginning on or after January 1, 2008.
          (2) Special rule for collective bargaining agreements.--In 
        the case of a group health plan maintained pursuant to one or 
        more collective bargaining agreements between employee 
        representatives and one or more employers ratified before the 
        date of the enactment of this Act, the amendments made by this 
        section shall not apply to plan years beginning before the 
        earlier of--
                  (A) the later of--
                          (i) the date on which the last of the 
                        collective bargaining agreements relating to 
                        the plan terminates (determined without regard 
                        to any extension thereof agreed to after the 
                        date of the enactment of this Act), or
                          (ii) July 1, 2008, or
                  (B) the date which is 3 years after the date of the 
                enactment of this Act.

SEC. 4. EFFECTIVE DATE.

  Except as otherwise provided in this Act, the provisions of this Act, 
and the amendments made by this Act, shall take effect on the date of 
the enactment of this Act.

                                Purpose

    Trade can produce both positive and negative consequences. 
When international free trade agreements were being proposed in 
the early 1990s, proponents argued that they would produce a 
net economic benefit for the U.S. and its trading partners. 
While there have been some winners, the consequence of a global 
economy is that many U.S. businesses have and will move 
offshore, are forced to downsize or shut down altogether. 
Consequently, there is increased economic insecurity and job 
instability among millions of U.S. workers with more and more 
losing their jobs and health care every day.
    Congress has a responsibility to provide meaningful 
assistance to workers who are negatively affected by trade. 
When international trade agreements cause American workers to 
lose their jobs through no fault of their own, Congress must 
ensure that displaced workers can make ends meet while they 
find a new job or, in the case of older workers, until they 
reach retirement age. While income support and training 
benefits through Trade Adjustment Assistance (TAA) are critical 
to the viability of displaced workers, it is equally important 
to ensure that workers have as much advance notice as possible 
before a plant closing or layoff. The Early Warning & Health 
Care for Workers Affected by Globalization Act amends the 
Worker Adjustment and Retraining Notification Act (WARN) so 
that more workers will have a longer period of time to prepare 
for imminent job loss. Furthermore, the bill will ensure that 
workers are educated and informed about benefits and services 
for which they may eligible before they find themselves 
unemployed and unsure of what to do next.   
    In addition, H.R. 3796 will ensure that workers who have 
lost their job due to trade have access to continued health 
care coverage. The bill permits TAA eligible employees who are 
55 and older or who have worked for an employer for 10 or more 
years to utilize an additional healthcare option: COBRA\1\ 
coverage until they are eligible for Medicare at age 65 or 
covered by another health plan. This additional health care 
option is critical for older workers displaced by trade because 
they face even tougher obstacles when trying to obtain 
affordable and adequate health care coverage.
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    \1\Title X of the Consolidated Omnibus Budget Reconciliation Act 
(COBRA).
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 Committee Action Including Legislative History and Votes in Committee


                             99TH CONGRESS

    On March 20, 1985, Representative William D. Ford (D-MI), 
along with Representative Silvio O. Conte (D-MA), introduced 
H.R. 1616, the Labor-Management Notification and Consultation 
Act of 1985. The bill focused on two issues: (1) advance 
notification and (2) consultation between employers and unions 
over plant closing or layoff decisions. The bill had 173 co-
sponsors and was referred to the Education and Labor Committee.
    A joint hearing was held by the Subcommittees on Labor-
Management Relations and Employment Opportunities to consider 
the ``Labor-Management Notification and Consultation Act of 
1985, H.R. 1616'' on May 15, 1985. Witnesses included union and 
business representatives as well as academics. H.R. 1616 was 
defeated in the House on November 21, 1985, by a margin of five 
votes 203-208.\2\
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    \2\Roll Call No: 421.
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                             100TH CONGRESS

    On February 18, 1987, Representative Ford (D-MI) introduced 
the Economic Dislocation and Worker Adjustment Assistance Act, 
H.R. 1122. It had 108 cosponsors and was referred to the House 
Committee on Education and Labor. H.R. 1122 was favorably 
reported out of Committee.\3\ However, no vote was taken in the 
House.
---------------------------------------------------------------------------
    \3\Report No: 100-285.
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Subcommittee hearing on H.R. 1122

    A joint hearing was held on March 16, 1987 by the 
Subcommittee on Labor-Management Relations and the Subcommittee 
on Employment Opportunities on the ``Economic Dislocation and 
Worker Adjustment Assistance Act, H.R. 1122.''\4\ Testimony was 
provided by Owen F. Bieber, President of the United Automobile, 
Aerospace and Agriculture Implement Workers of America, UAW, 
AFL-CIO; Thomas Fricano, assistant regional Director of Region 
9, UAW; Dave Steinwald, shop chairman, local 2100, UAW; Robert 
Geiger, Vice President of Labor Relations, Allied Signal Inc.; 
Bruce J. Johnston, Executive Vice President, Employee 
Relations, USX; the Honorable Angelo R. Martinelli, Mayor, 
Yonkers, NY; Howard D. Samuel, President of the Industrial 
Union Department AFL-CIO; Douglas H. Soutar, National Center on 
Occupational Readjustment; Isiah Turner, Commissioner, 
Washington State Employment Security Department; William H. 
Wynn, President, United Food & Commercial Workers International 
Union.
---------------------------------------------------------------------------
    \4\Serial No. 100-53.
---------------------------------------------------------------------------
    In the Senate S. 538, the Economic Dislocation and Worker 
Adjustment Assistance Act was introduced on February 19, 1987 
by Senator Howard Metzenbaum (D-OH). It garnered 21 cosponsors 
and was referred to the Labor and Human Resources Committee. 
Joint hearings entitled ``Economic Dislocation and Worker 
Adjustment Assistance Act'' were held by the subcommittee on 
Labor and the subcommittee on Employment and Productivity on 
March 10, 1987 and March 26.
    Although both bills were reported out of their respective 
Committees as separate pieces of legislation, a revised version 
of S. 538 was added as Subtitle E of H.R. 3, the Omnibus Trade 
and Competitiveness Act of 1988. As revised, the bill required 
60 days advance notice of plant closings or mass layoffs 
resulting in permanent job losses or layoffs of at least six 
months in duration.
    H.R. 3 was vetoed by President Ronald Reagan with the 
President's principal objection being the presence of advance 
notification provisions. On April 21, 1988 the House of 
Representatives overrode the President's veto by a vote of 308-
113,\5\ however, the Senate failed to do so by a vote of 61-
37.\6\
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    \5\Record Vote No: 150.
    \6\Record Vote No: 169.
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    On June 16, 1988, the Workers Adjustment and Retraining 
Notification Act, S. 2527 was introduced by Senator Howard 
Metzenbaum. S. 2527 had 23 co-sponsors. The bill was virtually 
identical to the advance notification provisions of H.R. 3 
which was vetoed by President Reagan. On August 4, 1988 WARN 
became Public Law No: 100-379 over a presidential veto.\7\
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    \7\The House passed H.R. 2527 by a vote of 286-136, while the 
Senate passed WARN by a vote of 72-23.
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                             102ND CONGRESS

    On November 22, 1991, the American Jobs Protection Act, 
H.R. 3878, was introduced by Representative Ford (D-MI) and had 
70 co-sponsors. The bill would have required that employers 
provide notice and information on continuing benefits to 
employees who are subject to a plant closing or mass layoff 
because their work is transferred to another country. H.R. 3878 
was referred to the Education and Labor Committee, where it was 
referred to the Subcommittee on Labor-Management Relations.

Full committee field hearing on H.R. 3878

    On January 17, 1992, the Education and Labor Committee, led 
by Chairman William D. Ford\8\ (D-MI), conducted a field 
hearing on the American Jobs Protection Act in Westland, MI. 
The hearing featured testimony from witnesses, including: Owen 
Bieber, President, International Union, United Automobile, 
Aerospace and Agricultural Implement Workers of America (UAW); 
Hattie Smith, Former Employee, U.S. Auto Radiator; Bernadette 
Helkowski, Former Employee, U.S. Auto Radiator; Becky 
Nordstrom, Wayne County Private Industry Corporation; Joan E. 
Greenfield, Greenfield & Associates, Inc.; Harriet B. 
Saperstein, President, Highland Park Development Company; 
Bernadette Ford, Former Employee, Electro-Wire Products; 
Melanie Bishop, Former Employee, Electro-Wire Products; Penny 
Reha, Former Employee, Electro-Wire Products; Margaret McAvoy, 
Executive Director, Shiawassee Employment and Training; Patrick 
J. Marutiak, Attorney for Former Employees of Electro-Wire 
Products; and the Honorable Thomas C. Sawyer, Representative 
from Ohio.
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    \8\Representative William D. Ford served as Chairman to the 
Education and Labor Committee from 1991-1995.
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Full committee field hearing on H.R. 3878

    On March 28, 1992, the Education and Labor Committee, led 
by Chairman Ford (D-MI), conducted a field hearing on the 
American Jobs Protection Act in Flint, MI. The hearing featured 
testimony from witnesses, including: Ruben Burks, Regional 
Director, UAW Region 1-C; the Honorable Woodrow Stanley, Mayor 
of Flint; Jack Minore, City Councilman, Flint; Joe Sanchez, 
Gaines, Michigan; Estela Mata, Burton, Michigan; Dale Whitney, 
Saginaw, Michigan; Deborah Sparks, Boyne Falls, Michigan; Kelly 
Breakey, East Jordan, Michigan; and Chris Uhas, Northwest 
Michigan Council of Governments.

Full committee field hearing on H.R. 3878

    On March 30, 1992, the Education and Labor Committee, led 
by Chairman Ford (D-MI), conducted a field hearing on the 
American Jobs Protection Act in Columbus, OH. The hearing 
featured testimony from witnesses, including: the Honorable 
Howard M. Metzenbaum, United States Senator; Linda S. Starr of 
Swanton, Ohio; Gary Schondel of Toledo, Ohio; Carole Guice, 
Vanguard Vocational Center in Fremont, Ohio; Jim Laird of 
Bellevue, Ohio; Lawrence Bankowski, President, American Flint 
Glass Workers Union, AFL-CIO; Luis Pantoja, Mold Maker, Libby 
Glass, Inc., Toledo; John Meier, Vice President/General 
Manager, Libbey Glass, Inc., Toledo; Willie Thorpe, IUE, Local 
801, Moraine, Ohio; Dr. James M. Cypher, California State 
University, Department of Economics, Fresno, California; and 
Wally Wagner, Wayne, Ohio. Testimony was submitted for the 
record by: the Honorable Marcy Kaptur, Representative from 
Ohio; Ray T. Kest, Lucas County Treasurer; Rebecca Merrill.

Full committee field hearing on H.R. 3878

    On April 24, 1992, the Education and Labor Committee, led 
by Chairman Ford (D-MI), conducted a joint field hearing on the 
American Jobs Protection Act in San Francisco, CA with the 
Committee on Interior and Insular Affairs. The hearing featured 
testimony from witnesses, including: Jack Henning, Executive 
Secretary-Treasurer, California Labor Federation, AFL-CIO; 
Douglas Dowd, Professor, Johns Hopkins School of Advanced 
International Studies and San Jose State University; David 
Arian, President, International Association of Machinists, Air 
Transportation Employees, Local Lodge 1781, Burlingame, CA; 
Craig Merrilees, Co-Director, Fair Trade Campaign, San 
Francisco; Carl Pope, Associate Executive Director, 
Conservation and Communications, Sierra Club; and Al Meyerhoff, 
Senior Attorney, National Resources Defense Council. Testimony 
was submitted for the record by Lou Franchimon, Napa-Solano 
Counties, Building and Construction Trades Council.
    On March 4, 1992, the Save American Jobs Act, S. 2311, was 
introduced by Senator Howard Metzenbaum (D-OH). The bill would 
have required a covered employer to provide affected workers 
and the Secretary of Labor with a 120-day relocation notice and 
provide dislocated workers with specified coverage of severance 
pay, health care benefits, and retraining reimbursement. S. 
2311 had 2 co-sponsors. It was referred to the Committee on 
Labor and Human Resources, where it was referred to the 
Subcommittee on Labor.

Full committee hearing on S. 2311

    On April 7, 1992, the Committee on Labor and Human 
Resources, led by Chairman Edward Kennedy (D-MA), conducted a 
legislative hearing on the Save American Jobs Act. The hearing 
featured testimony from witnesses, including: Anita Mingus, 
employee, Zenith Electronics Corporation, Springfield, MO; Tony 
Sanchez, Manager, El Paso District Board, Amalgamated Clothing 
and Textile Workers Union, El Paso, Texas; Owen Bieber, 
President, International Union, United Automobile, Aerospace 
and Agricultural Implement Workers of America; the Honorable 
Gerald D. Lucia, Mayor, Mount Pleasant, PA and former employee, 
Volkswagen of America; and Jeff Faux, President, Economic 
Policy Institute.

                             103RD CONGRESS

    On March 3, 1993, H.R. 1207, the Jobs Preservation Act of 
1993, was introduced by Representative Tim Roemer (D-IN). H.R. 
1207 would have amended WARN to require that the Secretary of 
the Treasury be notified prior to certain plant closings. It 
was referred to the Committee on Education and Labor, where it 
was referred to the Subcommittee on Labor-Management Relations, 
and to the Committee on Ways and Means. No action was taken on 
H.R. 1207.
    On May 27, 1993, the American Jobs Protection Act, H.R. 
2300 was introduced by Chairman Ford (D-MI). The bill would 
have provided assistance to workers who were affected by a 
plant closing or mass layoff when their job was transferred to 
a foreign country. H.R. 2300 would have also amended WARN to 
expand coverage and strengthen notification requirements. H.R. 
2300 had no co-sponsors. It was referred to the Committee on 
Education and Labor, where it was referred to the Subcommittee 
on Labor-Management Relations. Neither the full committee nor 
the subcommittee took any action on H.R. 2300.
    On March 17, 1994, H.R. 4072, the Worker Adjustment and 
Retraining Notification Amendments Act, was introduced by 
Chairman Ford (D-MI). It would have amended WARN to cover more 
employers and situations, lengthen the period of advance 
notification, and include coverage of part-time employees. H.R. 
4072 was referred to the Committee on Education and Labor and 
subsequently referred to the Subcommittee on Labor-Management 
Relations. No hearings were held on the bill.
    On March 24, 1994, S. 1969, the Worker Adjustment and 
Retraining Notification Amendments Act, was introduced by 
Senator Howard Metzenbaum (D-OH) with similar provisions as the 
House version. It had 8 co-sponsors. No further action was 
taken on S. 1969.
    On October 5, 1994, S. 2504, the Contingent Workforce 
Equity Act, was introduced by Senator Howard Metzenbaum (D-OH). 
The bill would have extended to part-time employees the right 
to advance notice of layoffs and plant closings and other 
rights under WARN. S. 2504 was referred to the Committee on 
Labor and Human Resources. However, no further action was 
taken.

                             105TH CONGRESS

    On June 17, 1997, H.R. 1946, the Employee Ownership 
Enhancement Act, was introduced by Representative James 
Traficant, Jr. (D-OH). It would have amended WARN to require an 
employer which is terminating its business to offer its 
employees an employee stock ownership plan. It was referred to 
the Committee on Education and the Workforce. The Committee did 
not consider H.R. 1946.
    On March 5, 1998, H.R. 3397, the Corporate Good Citizenship 
Contract Act of 1998, was introduced by Representative David 
Obey (D-WI). It would have required an employer which is 
subject to WARN and who gives a notice of a plant closing to 
negotiate in good faith regarding possible means of using the 
plant and equipment for continued employment. It was referred 
to the Committee on Education and Labor, where it was referred 
to the Subcommittee on Employer-Employee Relations, and to the 
Committee on Ways and Means. No further action was taken on 
H.R. 3397.

                             106TH CONGRESS

    On February 2, 1999, H.R. 499, the Employee Ownership 
Enhancement Act, was again introduced by Representative James 
Traficant, Jr. (D-OH). H.R. 499 was referred to the Committee 
on Education and the Workforce, where it was referred to the 
Subcommittee on Workforce Protections. No further action was 
taken on H.R. 499.

                             108TH CONGRESS

    On January 7, 2003, H.R. 137, the Rural America Job 
Assistance and Creation Act, was introduced by Representative 
John McHugh (R-NY). Among other provisions, the bill would have 
amended the WARN to require employer notification of Federal, 
State, and local elected officials prior to dislocation of 
workers. H.R. 137 was referred to the Committee on Education 
and the Workforce, where it was referred to the Subcommittee on 
Workforce Protection and the Subcommittee on 21st Century 
Competitiveness; the Committee on Ways and Means; the Judiciary 
Committee, where it was referred to the Subcommittee on 
Immigration and Claims; the Agriculture Committee, where it was 
referred to the Subcommittee on Conservation, Credit, Rural 
Development and Research; and the Financial Services Committee, 
where it was referred to the Subcommittee on Domestic Monetary 
Policy, Technology and Economic Growth. No further action was 
taken on H.R. 137.
    On February 11, 2004, H.R. 3808, the Safeguarding Assets 
for Employees in Bankruptcy Act of 2004, was introduced by 
Representative Luis Gutierrez (D-IL). H.R. 3808 would have 
prioritized the payment of employee claims arising under WARN. 
It was referred to the Judiciary Committee, where it was 
referred to the Subcommittee on Commercial and Administrative 
Law. Neither the full Committee, nor the Subcommittee, took any 
further action on H.R. 3808.
    On June 25, 2004, H.R. 4740, the Jobs for America Act of 
2004, was introduced by Representative George Miller (D-CA). 
H.R. 4740 had 30 co-sponsors. It was referred to the Committee 
on Education and the Workforce, where it was referred to the 
Subcommittee on Workforce Protections. A companion bill, S. 
2090, was introduced on February 12, 2004 by Senator Tom 
Daschle (D-SD). It was referred to the Health, Education, 
Labor, and Pensions (HELP) Committee and had 24 co-sponsors. 
Both bills would have amended WARN to provide protections for 
employees relating to the offshoring of jobs. No further action 
was taken on either bill.

                             109TH CONGRESS

    On January 24, 2005, S. 14, the Fair Wage, Competition, and 
Investment Act of 2005, was introduced by Senator Debbie 
Stabenow (D-MI). The bill would have amended WARN to include 
offshoring of jobs among the circumstances for which employers 
are required to post notices of employee rights. S. 14 had 13 
co-sponsors and was referred to the Finance Committee. No 
further action was taken.
    On March 2, 2006, S. 2357, the Right TRACK Act, was 
introduced by Senator Edward Kennedy (D-MA). This bill would 
have required an employer to give 90-day notice before ordering 
the offshoring of jobs. It was referred to the Finance 
Committee. No action was taken on S. 2357.

                             110TH CONGRESS

    On July 16, 2007, S. 1792, the Forewarn Act of 2007, was 
introduced by Senator Sherrod Brown (D-OH). It has 7 co-
sponsors and was referred to the Health, Education, Labor, and 
Pensions Committee, however no further action has been taken.
    On September 25, 2007, H.R. 3662, the Forewarn Act of 2007, 
was introduced by Representative John McHugh (R-NY). It was 
referred to the Committee on Education and Labor. No further 
action has been taken.

Education and Labor Committee hearings on the strengthening the middle 
        class

    On January 31, 2007, the Committee on Education and Labor 
held a full committee hearing on ``Strengthening America's 
Middle Class: Evaluating the Economic Squeeze on America's 
Families.'' The hearing featured testimony from witnesses 
including: Jacob Hacker, Ph.D., Professor, Yale University; 
Eileen Appelbaum, Director, Center for Women and Work, Rutgers 
University; Christian Weller, Senior Economist, Center for 
American Progress; Rosemary Miller, flight attendant; Ms. Diana 
Furchtgott-Roth, Director, Center for Employment Policy; Ms. 
Kellie Johnson, President, ACE Clearwater Enterprises, Inc.
    On February 7, 2007, the Committee on Education and Labor 
held a full committee hearing on ``Strengthening America's 
Middle Class: Finding Economic Solutions To Help America's 
Families.'' The hearing featured testimony from witnesses, 
including: Richard L. Trumka, Secretary-Treasurer, AFL-CIO; 
Judy Feder, Dean, Georgetown Public Policy Institute, 
Georgetown University; William T. Archey, President and Chief 
Executive Officer, AeA; Dr. Lynn A. Karoly, Senior Economist, 
RAND Corporation. A statement was submitted for the record by 
the Honorable Janet Napolitano, Governor, State of Arizona.

Congressional hearings on the effectiveness of trade adjustment 
        programs

    On March 26, 2007, the Committee on Education and Labor 
held a hearing on ``How Effective are Existing Programs in 
Helping Workers Impacted by International Trade?'' The hearing 
featured testimony from witnesses including: Stan Dorn, Senior 
Research Associate, Urban Institute; Bruce Herman, Executive 
Director, National Employment Law Project; Lael Brainard; Vice 
President and Director, Bernard L. Schwartz, Chair in 
International Economics, Brookings Global Economy and 
Development Program; David Lee Brevard, Former Maytag Employee, 
Galesburg, Illinois; Thea Lee, Policy Director, AFL-CIO; and 
Tim Alford, Ph.D., Director, Alabama Office of Workforce 
Development.
    On June 14, 2007, the Ways and Means Committee held a full 
committee hearing on ``Promoting U.S. Worker Competitiveness in 
a Globalized Economy.''
    The hearing featured testimony from witnesses including: 
The Honorable Adam Smith, Representative from the State of 
Washington; Sigurd R. Nilsen, Ph.D., Director for Education, 
Workforce, and Income Security Issues, Government 
Accountability Office; John Edward Bolas, Jr., Freedom, 
Pennsylvania; Tammy Flynn, Trade Adjustment Assistance State 
Coordinator, Bureau of Workforce Programs, Department of Labor 
and Economic Growth, Lansing, Michigan; Virginia Ponser 
Flanagan, Consultant, Campbellsville University, 
Campbellsville, Kentucky; Curtis Morrow, Workforce Development 
Unit Manager, North Carolina Employment Security Commission, 
Raleigh, North Carolina; James Fusco, East Brunswick, New 
Jersey; Marcus Courtney, President, Washington Alliance of 
Technology Workers, Seattle, Washington; Karen Pollitz, 
Research Professor, Health Policy Institute; Georgetown 
University; Diana Furchtgott-Roth, Senior Fellow and Director 
of Center for Employment Policy, Hudson Institute; Jane M. 
McDonald-Pines, Workforce Policy Specialist, American 
Federation of Labor and Congress of Industrial Organizations; 
Howard Rosen, Executive Director, Trade Adjustment Assistance 
Coalition; The Honorable Mason M. Bishop, Deputy Assistant 
Secretary, Employment and Training Administration, Department 
of Labor; David R. Williams, Director of Electronic Tax 
Administration and Refundable Credits, Internal Revenue 
Service. Testimony was submitted for the record by the Illinois 
Department of Commerce and the National Association of Health 
Underwriters.

The Early Warning and Health Care for Workers Affected by Globalization 
        Act

    On October 10, 2007, the Early Warning and Health Care for 
Workers Affected by Globalization Act, H.R. 3796 was introduced 
by Chairman George Miller (D-CA). It currently has 9 co-
sponsors and was referred to the Committee on Education and 
Labor.

Full committee mark-up of H.R. 3796

    The Full Committee met on October 18, 2007 to mark up H.R. 
3796. The Committee adopted by voice vote an amendment in the 
nature of a substitute offered by Chairman George Miller (D-
CA). Two other amendments were offered and debated. An 
amendment offered by Representative Tom Price (R-GA) was 
adopted by voice vote, while an amendment in the nature of a 
substitute offered by Ranking Member Howard ``Buck'' McKeon was 
offered and then withdrawn. The Committee voted to favorably 
report H.R. 3796, by a vote of 26-18.
    The amendment offered by Representative Price (R-GA) would 
add a terrorist attack on the United States as a fourth 
exception businesses can assert when failing to notify 
employees 90 days prior to a mass layoff or plant closing. The 
amendment was adopted by voice vote.
    The McKeon (R-CA) amendment in the nature of a substitute 
would have amended the Workforce Investment Act. The McKeon 
substitute was withdrawn and no further action was taken on it.
    The Miller amendment in the nature of a substitute 
contained the following modifications to H.R. 3796:
     Deletes the separate notice requirement for 
layoffs at multiple work sites. As introduced, H.R. 3796 would 
have required WARN notification if an employer laid off 100 or 
more workers at multiple worksites within a 30-day period.
     Adds ``counseling and early access to training'' 
to the list of possible available services that the Secretary 
of Labor shall provide information on to employers, and which 
should be made available to affected workers. Employees should 
have access to job training and counseling services as they 
prepare for imminent job loss.
     Makes clear that employers cannot ask employees to 
waive their statutory notice rights under the WARN Act. 
Employers have avoided their responsibilities under the WARN 
Act by requiring employees waive their rights under the law 
when they are terminated in exchange for severance pay. This 
amendment ensures that more employees and communities will 
receive notice prior to a mass layoff or plant closing.
     Clarifies the definition of ``back pay'' so that 
employees can recover two days pay multiplied by the number of 
calendar days short of 90 that the company provided notice of a 
mass layoff or plant closing. The original WARN Act intended 
for employees to get 60 days of pay in compensation when an 
employer failed to give a pre-layoff notice. However, some 
courts have held that employees are only entitled to ``back 
pay'' for the 5 days in each week. The Miller substitute 
intends to clarify that employees shall be permitted to recover 
the total number of calendar days that notice was required but 
not given.
     A fifth modification included within the 
substitute which would have amended Section 3 of the bill was 
removed by unanimous consent as extraneous material.

                                Summary

    The Early Warning and Health Care for Workers Affected by 
Globalization Act provides workers with advance notice of 
impending job loss and with an additional option for health 
care coverage when that job loss is the result of trade. H.R. 
3796 builds on and improves the Worker Adjustment and 
Retraining Notification Act. Over the last 18 years the WARN 
has provided help to some workers facing a plant closing or a 
mass layoff. But the law has a number of weaknesses. H.R. 3796 
addresses the central problems with the WARN Act by simplifying 
when and to whom notice is required. It will help to reduce the 
devastating impact of plant closures and mass layoffs on 
workers, their families and their communities. While early 
warning of impending job loss won't prevent workers from losing 
their jobs, it can help them prepare to find a new job or seek 
additional skills for new employment.
    Specifically, the Early Warning and Health Care for Workers 
Affected by Globalization Act requires that employees, the 
local government, and the U.S. Department of Labor (DOL) 
receive 90 days' notice prior to a mass layoff or plant closing 
affecting 25 or more employees, including part-time employees, 
at a single jobsite within a 30-day period. It eliminates a 
loophole that has allowed employers to avoid giving notices by 
shifting employees around jobsites and increases penalties from 
up to 60 days' worth of back pay to up to 90 days' worth of 
double back pay for each calendar day notice was required but 
not given. DOL is authorized to investigate complaints and 
bring enforcement suits when employers fail to comply with the 
law. The bill requires employers provide comprehensive 
information about dislocated worker benefits and services to 
affected workers to help them manage during their period of 
unemployment.
    In addition, H.R. 3796 provides an important additional 
health care option to older and tenured workers who lose their 
jobs because of trade. Currently, workers can elect continued 
group health coverage through what is known as COBRA for up to 
18 months. H.R. 3796 would permit workers aged 55 or older or 
workers with 10 or more years of service with their employer to 
continue purchasing a group health care plan until they are 
enrolled in another health plan, whether it is a private one or 
Medicare.

                     Statement and Committee Views

    The Committee on Education and Labor has spent considerable 
time over the last ten months discussing the economic squeeze 
on American families and finding ways this Congress can 
strengthen and grow the middle class. Americans are losing 
ground in the current economy and they are right to be 
concerned about the impact of international trade agreements. 
H.R. 3796 will help workers who lose their job due to a plant 
closing or mass layoff prepare for imminent job loss. It will 
also provide those older and tenured workers who lose their 
jobs due to trade with the option to extend their COBRA 
coverage until they turn 65 or secure alternative coverage.

The global economy and its impact on U.S. workers

    American families are currently caught in an economic 
squeeze as incomes have not kept pace with rising costs.\9\ As 
the cost of basic expenses--for housing, food, education, 
transportation and health care--increase, paychecks have 
remained stagnant.\10\ While the economy has performed strong 
overall, economic insecurity has infiltrated American middle-
class life, ``increasingly, middle-class Americans find 
themselves on a shaky financial tightrope, without an adequate 
safety net if they lose their footing.''\11\
---------------------------------------------------------------------------
    \9\``Strengthening America's Middle Class: Evaluating the Economic 
Squeeze on America's Families,'' 110th Cong., 1st Sess. (2007) (written 
testimony of Eileen Applebaum, Professor II, School of Management and 
Labor Relations, Rutgers, The State University of New Jersey) at 1. 
[Hereinafter Applebaum Testimony].
    \10\``Strengthening America's Middle Class: Evaluating the Economic 
Squeeze on America's Families,'' 110th Cong., 1st Sess. (2007) (written 
testimony of Christian Weller, Senior Economist, Center for American 
Progress) at 1. [Hereinafter Weller Testimony].
    \11\``Strengthening America's Middle Class: Evaluating the Economic 
Squeeze on America's Families,'' 110th Cong., 1st Sess. (2007) (written 
testimony of Jacob Hacker) at 1. [Hereinafter Hacker Testimony].
---------------------------------------------------------------------------
    The U.S. economy faces increased pressures as a result of 
an intensification of domestic and international competition--
impacting all industries, occupations and regions.\12\ With the 
passage of more international free trade agreements and an 
increase in the number of jobs lost and/or moved offshore, ``no 
sector of the U.S. economy is immune from the effects of 
globalization.''\13\
---------------------------------------------------------------------------
    \12\``Promoting U.S. Worker Competitiveness,'' 110th Cong. 1st 
Sess. (2007) (written testimony of Howard Rosen, Executive Director, 
Trade Adjustment Assistance Coalition) at 1-2. [Hereinafter Rosen 
Testimony].
    \13\Id.
---------------------------------------------------------------------------
    The reality for displaced workers is that they are entering 
a difficult job market; job growth is currently the weakest on 
record.\14\ While overall job losses stopped in August 2003, 
the economy has still had slower job growth than during similar 
periods of prior business cycles. Between March 2001 and 
December 2006, the average length of unemployment totaled 17.5 
weeks.\15\ This is higher than any other business cycle since 
World War II. The share of workers looking for a job for more 
than 27 weeks averaged 18.8 percent during the current business 
cycle, which also represents the highest level on record.\16\ 
Making matters worse, employment opportunities have declined. 
In the 1990s, the employment rate grew by an annualized 0.14 
percentage points each month. The employment rate has decreased 
by 0.16 percentage points in the current business cycle, 
marking the first business cycle since the 1950s in which job 
opportunities dropped.\17\
---------------------------------------------------------------------------
    \14\Gene Sperling and Christian E. Weller, ``Five Economic 
Challenges that Need More Policy Attention,'' Center for American 
Progress (Jan. 22, 2007), available at: http://
www.americanprogress.org/issues/2007/01/state_of_economy.html. During 
the current business cycle, beginning in March 2001, job growth has 
averaged an annualized 0.5 percent per month, the lowest of any 
business cycle since the Great Depression. This represents less than a 
quarter of the average of all prior business cycles since World War II. 
Since the recession ended in November 2001, job growth has averaged an 
annualized 0.8 percent, or 85,000 jobs per month, substantially less 
than the 2.7 percent average growth rate during recoveries of at least 
equal length since World War II.
    \15\Id.
    \16\Id.
    \17\Id.
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    Globalization not only impacts job security and employment 
opportunities, it can significantly decrease the wages a family 
earns each year.\18\ Over 40 percent of workers suffer an 
earnings loss after they are reemployed.\19\ Globalization has 
caused the average household to lose about $2,000 in annual 
earnings, increased inequality in U.S. earning by about 7 
percent by 2006.\20\ The result is an increase in ``wage 
inequality and wage losses that may only get worse with 
time.''\21\
---------------------------------------------------------------------------
    \18\Josh Bivens, ``Globalization and American Wages: Today and 
Tomorrow,'' Economic Policy Institute (Oct. 11, 2007).
    \19\Rosen Testimony at 6.
    \20\Bivens supra note 18.
    \21\Id.
    \21\Sperling, supra note 14.
---------------------------------------------------------------------------
    The Economic Policy Institute (EPI) concludes that a 
substantial contributor to the country's unemployment problem 
is the rise in large-scale layoffs.\22\ The Bureau of Labor 
Statistics reports that between 1996 and 2003 there were 51,516 
extended mass layoff events\23\ which caused 10,679,358 job 
losses in this country.\24\ Thousands of job losses each year 
are the direct result of trade; the number of Trade Adjustment 
Assistance petitions certified in Fiscal Year 2006 was 1,700 
covering an estimated 400,000 workers.\25\
---------------------------------------------------------------------------
    \22\Economic Policy Institute, ``Economic Snapshots,'' (Mar. 5, 
2003).
    \23\The Bureau of Labor Statistics defines extended mass layoffs as 
the separations associated with the movement of work, domestically or 
overseas, reflect job loss at companies employing at least 50 workers 
where at least 50 people filed for unemployment insurance during a 
five-week period and the layoff lasted more than 30 days.
    \24\The Bureau of Labor Statistics, ``Mass Layoff Statistics--
Extended Mass Layoff Separations,'' available at: http://data.bls.gov/
cgi-bin/surveymost.
    \25\GAO Trade Adjustment Assistance Report.
---------------------------------------------------------------------------
    Displaced workers face significant difficulties when 
confronted with imminent job loss. Dave Bevard, a worker 
displaced by trade, testified to the Committee that it can take 
workers time to process the knowledge that they will soon be 
unemployed. He said the emotional and financial stress caused 
by sudden job loss can be paralyzing and, ``until you have 
experienced it, you cannot truly appreciate the emotional 
devastation of [losing your job] and [the world as you know 
it].''\26\ Furthermore, ``maneuvering through the Trade 
Adjustment Assistance Act and other programs can be like 
entering a bureaucratic minefield * * * and it is often 
difficult to get clear consistent answers concerning 
eligibility and available benefits.''\27\ In light of the 
difficulties displaced workers like Dave Bevard face as they 
seek new employment and navigate through the system, advance 
notice of a layoff or plant closing is an essential and 
critical component to helping workers and communities survive.
---------------------------------------------------------------------------
    \26\``How Effective Are Existing Programs in Helping Workers 
Impacted by Trade,'' 110th Cong. 1st Sess. (2007) (written testimony of 
Dave Bevard) at 1. [Hereinafter Bevard Testimony].
    \27\Bevard Testimony at 2.
---------------------------------------------------------------------------

Overview of the WARN Act

    Prior to the passage of the WARN Act in 1988 an increasing 
number of U.S. workers were losing their jobs due to 
downsizing, plant closing or mass layoffs.\28\ The job loss had 
considerable effects on public health. Furthermore, ``the 
financial burdens imposed on states as a result of increasing 
unemployment levels,''\29\ were intensified because ``very few 
employers disclosed their decision to significantly reduce or 
cease operations in advance thus leaving workers and 
communities without an opportunity to adjust and plan for 
impending dislocation.''\30\
---------------------------------------------------------------------------
    \28\See, Paul O. Flaim & Ellen Sehgal, Displaced Workers of 1979-
83: How Well Have They Fared?, Monthly Lab. Rev., June 1985, at 3 
(indicating that 11.5 million workers lost their jobs as a result of 
plant closings and mass layoffs between 1979 and 1983).
    \29\Meredith Klapholtz, Judicial Interpretation of the WARN Act 
Exceptions and Their Implication in the Health Care Industry, 3 U. Pa. 
J. Lab. & Emp. L. 113, 114 (2000).
    \30\Christopher P. Yost, Comment, The Worker Adjustment and 
Retraining Notification Act of 1988: Advance Notice Required?, 38 Cath. 
U. L. Rev. 675, 675 (1989).
---------------------------------------------------------------------------
    Congress first considered legislation to encourage advanced 
notification to workers for plant closings in 1973. The Trade 
Act of 1974\31\ encouraged firms that planned to move their 
operations outside of the United States to provide at least 60 
days advance notice to employees likely to be adversely 
affected by their actions as well as to the Secretaries of 
Labor and Commerce.\32\
---------------------------------------------------------------------------
    \31\Title II, Sect. 283 of P.L. 93-618.
    \32\Title II, Section 283 of P.L. 93-618; See also, Linda Levine 
``The Worker Adjustment and Retraining Act (WARN)'', Congressional 
Research Service, September 26, 2007.
---------------------------------------------------------------------------
    Efforts to enact mandatory advance layoff notice continued 
over the next decade. On June 16, 1988 Senator Howard 
Metzenbaum introduced the WARN Act, S. 2527. The purpose of the 
bill was to provide:

        protections to workers, their families and communities 
        by requiring employers to provide notification 60 
        calendar days in advance of plant closings and mass 
        layoffs. Advance notice provides workers and their 
        families some transition time to adjust to the prospect 
        of loss of employment, to seek and obtain alternative 
        jobs and, if necessary, to enter skill training and 
        retraining that will allow these workers to 
        successfully compete in the job market.\33\
---------------------------------------------------------------------------
    \33\20 C.F.R. 639.1(a) (1999).

    The Senate Committee on Labor and Human Resources 
articulated Congress' principles behind the legislation: (1) 
advance notice was essential for workers to successfully adjust 
to job loss; (2) advance notice would save the government 
approximately $257-$386 million in unemployment compensation 
benefits each year; (3) advance notice would make adjustment 
efforts more efficient by permitting employees to return to 
work quickly and at better wages; and (4) advance notice is a 
matter of ``fair play'' for workers and their families.\34\ On 
July 6, 1988 the Senate approved S. 2527 and the House of 
Representatives approved it one week later. WARN was enacted on 
August 4, 1988 overriding President Reagan's veto\35\ and 
became effective in February 1989.
---------------------------------------------------------------------------
    \34\Richard W. McHugh, Comment, Fair Warning or Foul? An analysis 
of the Worker Adjustment and Retraining Notification (WARN) Act in 
Practice, 14 Berkley J. Emp. & Lab. L. 1, 11-12 (1993). See also, 
Klapholtz, supra note 29 at 115.
    \35\P.L. 100-379, 29 USC 2101-2109.
---------------------------------------------------------------------------
    Employers with 100 or more employees, including hourly and 
salaried workers, as well as managerial and supervisory 
employees are covered by WARN. Employees who have worked less 
than 6 months in the last 12 months and part-time employees 
working less than 20 hours a week are not counted toward the 
100 employee threshold. Federal, State, and local government 
entities which provide public services are not covered.\36\
---------------------------------------------------------------------------
    \36\29 USC 2101.
---------------------------------------------------------------------------
    The Act currently requires that employers give written 
notice to: (1) either affected workers or their 
representatives; (2) the State dislocated worker unit; and (3) 
the appropriate unit of local government\37\ 60 days in advance 
of covered plant closings and covered mass layoffs.
---------------------------------------------------------------------------
    \37\29 USC 2102.
---------------------------------------------------------------------------
    There are two situations that trigger a WARN notice: (1) a 
plant closing, whereby the employer is required to give notice 
when an employment site (or one or more facilities or operating 
units within an employment site) will be shut down, and the 
shutdown will result in an employment loss for 50 or more 
employees; and (2) a mass layoff whereby the employer is 
required to give notice if there is to be a mass layoff which 
does not result from a plant closing, but which will result in 
an employment loss at the employment site during any 30-day 
period for 500 or more employees, or for 50-499 employees if 
they make up at least 33 percent of the employer's active 
workforce.
    If during a 90-day period the employer has employment 
losses\38\ affecting 2 or more groups at a single site which in 
aggregate constitute a mass layoff or a plant closing, the 
situation shall be treated as a mass layoff or a plant closing 
triggering a WARN notice unless the employer can show that they 
are separate actions and causes and not an attempt to evade the 
requirements of WARN.\39\
---------------------------------------------------------------------------
    \38\``Employment loss'' in these circumstances is defined to mean: 
(1) an involuntary employment termination; (2) a layoff exceeding 6 
months; or (3) a reduction in hours of work of more than 50 percent 
during each month of any six-month period. However, employees are not 
considered to have endured employment loss if the employer offers to 
transfer the employee to: (1) a different site of employment within 
commuting distance; or (2) any other site of employment if the employee 
accepts within 30 days of the offer or closing or layoff, whichever is 
later.
    \39\29 USC 2102.
---------------------------------------------------------------------------
    Employers are not required to provide pre-layoff notice if 
the employment relationship is temporary in nature. If the 
layoffs or plant closing result from the completion of a 
project and the employees knew the employment relationship was 
temporary, notice is not required. Plant closings or mass 
layoffs that are the result of a strike or lockout are exempt 
from notice unless employers lockout employees to evade 
compliance with the Act.\40\ Furthermore, employers who might 
otherwise be responsible for providing the 60-day notice may be 
exempt in certain situations. These circumstances include: (1) 
faltering company--the employer has been seeking financing or 
business for their faltering business and they thought they had 
a realistic chance of obtaining funds or new business to avoid 
the layoffs or plant closing; (2) unforeseeable business 
circumstances--the employer could not reasonably foresee the 
business event that led to the mass layoffs or plant closing; 
or (3) natural disaster--the occurrence of a flood, earthquake, 
drought, or storms.\41\
---------------------------------------------------------------------------
    \40\Levine supra note 5 at 31.
    \41\29 USC 2102.
---------------------------------------------------------------------------
    An employer who violates the WARN provisions by ordering a 
plant closing or mass layoff without providing appropriate 
notice is liable: (1) to each aggrieved employee for an amount 
including up to 60 days back pay and benefits for the period of 
violation; and (2) to a unit of local government for a civil 
penalty not to exceed $500 for each day of violation. WARN is 
enforced through the United States district courts. If an 
employer makes ``voluntary and unconditional payments'' to 
terminated employees for failure to give the required notice, 
the amount of penalty could be reduced. In addition, an 
employer's liability for back pay can be reduced if an 
employer's failure to comply was in ``good faith'' and ``with 
reasonable grounds for believing'' that the closure or layoff 
did not violate the law.\42\ The Department of Labor has no 
administrative or enforcement responsibility under WARN and 
cannot provide specific guidance with respect to individual 
situations.\43\
---------------------------------------------------------------------------
    \42\29 USC 2102.
    \43\29 USC 2104.
---------------------------------------------------------------------------
    Prior to the enactment of WARN, many in industry and 
business organizations argued that advance notice could 
increase economic inefficiency due to possible loss of 
customers, credit and employees, as well as increase friction 
in labor management relations.\44\ However, WARN's 
implementation has not produced the devastating results that 
industry and business feared.\45\ In addition, WARN has not 
played a significant role in labor law litigation and has 
survived a Constitutional challenge. The Fifth Circuit held 
that WARN was rationally related to Congressional concern over 
the economic harms caused by plant closings and did not involve 
a prohibited governmental invasion of an employer's 
property.\46\
---------------------------------------------------------------------------
    \44\Klapholtz supra note 29 at 115.
    \45\Prior to WARN's passage, employers argued that complying with 
WARN could cost them up to $15,000 a year. Five years after WARN's 
enactment, GAO reported that approximately 61 percent of employers who 
filed WARN notices experienced little or no costs ($500 or less [per 
employer]). See, Introductory Statement for S. 1969 by Senator Howard 
Metzenbaum. [Hereinafter Metzenbaum Statement].
    \46\Carpenters Dist. Council of New Orleans v. Dillard Dep't 
Stores, 15 F.3d 1275, 1280 (5th Cir. 1994) (held the WARN Act was not 
unconstitutionally vague and it violated the takings and due process 
clauses of the Fifth Amendment). See also, Klapholtz supra note 29 at 
116.
---------------------------------------------------------------------------

Implementation of the WARN Act and the need for reforms

    Over the past 18 years, WARN has been effective at helping 
U.S. workers. However, critical problems with the Act's 
coverage, compliance and enforcement still remain. Thousands of 
workers are laid off each year and do not receive the advance 
notice of the layoff as required under the law, ``under current 
law, fair notice has proven to be the exception not the rule. 
Employers have laid off workers in phases to avoid threshold 
level, used subsidiaries to evade liability and pressured 
workers to sign documents to waive their rights.''\47\
---------------------------------------------------------------------------
    \47\Steve Eder, Reform Overdue, WARN Act Critics Say Worker 
Advocates Look to Eliminate Flaws, Loopholes in Federal Law, TOL. BLADE 
(July 18, 2007) (quoting Senator Sherrod Brown, D-OH).
---------------------------------------------------------------------------
    In 1993, the WARN Act's original sponsor Senator Howard 
Metzenbaum, along with the Government Accountability Office 
(GAO) and others identified fundamental flaws with the Act's 
implementation. Congressional intent remained unfulfilled 
because insufficient notice was being given (even with 60 days) 
serious loopholes and ambiguities existed as did significant 
enforcement problems. Consequently, employers manipulate 
workforce reductions to evade the requirements under WARN.\48\ 
In other cases, employers simply choose not to comply with the 
law and the majority of violations go unenforced.\49\
---------------------------------------------------------------------------
    \48\``Examining the Coverage, Compliance, and Enforcement of the 
WARN Act,'' Senate Subcommittee on Labor of the Committee on Labor and 
Human Resources, 103rd Cong., 1st Sess. (1993) (written testimony of 
Julie H. Hurwitz, Executive Director, Sugar Law Center for Economic and 
Social Justice) at 1. [Hereinafter Hurwitz Testimony]. The Sugar Law 
Center has served as a clearinghouse for the WARN Act. The Institute 
works with labor unions and State and local governments, and counsels 
workers about their rights and in some cases helps workers bring 
lawsuits.
    \49\``Examining the Coverage, Compliance and Enforcement of the 
WARN Act,'' Hearing before the Senate Subcommittee on Labor of the 
Committee on Labor and Human Resources, 103rd Cong., 1st Sess. (1993) 
at 2. [Hereinafter S. Hrg. 103-35].
---------------------------------------------------------------------------
            Ambiguity and confusion over the Act's requirements
    Many workers are not protected by WARN because of its 
threshold requirements, and in many cases, employers have 
intentionally manipulated workforce reductions to evade WARN 
requirements. The complexity of WARN's requirements makes it 
hard for workers to know whether they are covered, particularly 
at worksites where workers are not organized.
    There is substantial confusion and ambiguity over when and 
how to apply the Act's threshold requirements. GAO found that 
between 1998 and 2002 the most commonly litigated issues 
related to layoff thresholds, ``employers, employer and 
employee representatives and lawyers cited the statute's 
definition of calculating the 50 employees who have been laid 
off, the one-third rule and the aggregation of multiple layoffs 
within a 90-day period as difficult to apply to their specific 
circumstances.''\50\ Neither the statute nor the Department of 
Labor were able to provide sufficient guidance to help 
employers and employees understand the definitions.\51\
---------------------------------------------------------------------------
    \50\``The Worker Adjustment and Retraining Notification Act: 
Revising the Act and Education Materials Could Clarify Employer 
Responsibilities and Employee Rights,'' Government Accountability 
Office (Sept. 2003) at 14. [Hereinafter GAO 2003 Report].
    \51\Id.
---------------------------------------------------------------------------
    Part of the confusion when determining if a mass layoff or 
plant closing triggers WARN stems from the multiple complicated 
steps involved in determining if the threshold requirement is 
met. First, employers must decide if an employment loss\52\ has 
been suffered by at least 50 employees or one-third of the 
workforce at a single worksite. Employees who have worked less 
than the last 6 out of 12 months or fewer than 20 hours per 
week are excluded from the threshold count.\53\ This formula 
leaves considerable discretion to the employer and often leaves 
employees unaware of whether or not the layoff or plant closing 
triggers WARN.
---------------------------------------------------------------------------
    \52\Employment loss is defined as an employment termination, other 
than a discharge for cause, voluntary departure, or retirement, a 
layoff exceeding 6 months, or a reduction in hours of work for 
individual employees of more than 50 percent during each month of any 6 
month period.
    \53\The exclusion of part-time workers has created difficulties for 
the courts when deciding which employer entities are legally liable 
under WARN and what job losses meet the WARN threshold. See, McHugh 
supra note 34 at 13-16.
---------------------------------------------------------------------------
    In addition, further complications can arise when multiple 
layoffs occur during a 90-day period. When multiple layoffs at 
a single worksite occur within a 90-day period and cause the 
layoff of at least 50 workers and one-third of the workforce, 
employers are be subject to the requirements under WARN.\54\ 
While Congress intended the aggregate of multiple layoffs 
during a 90-day period to trigger a WARN notice for all 
affected employees, in practice that has not been the result. 
For example, if a company has three layoffs during a 90-day 
period involving 20 workers in the first two layoffs and then 
60 in the third, the employer is only required to give a WARN 
notice to the employees in third layoff, who by themselves meet 
the threshold.\55\
---------------------------------------------------------------------------
    \54\GAO 2003 Report at 15.
    \55\Id.
---------------------------------------------------------------------------
    In 2001, GAO found that employers who were required to 
provide a WARN notice did so for almost one-half (46 percent) 
of plant closings and one-quarter of mass layoffs. Overall, 
covered employers gave a required WARN notice approximately 36 
percent of the time before a mass layoff or plant closure.\56\ 
A significant reason for low employer compliance can partially 
be attributed to the calculation of the layoff threshold (i.e. 
``whether the requisite number of employees have been laid off 
within prescribed time frames'')\57\ that trigger WARN 
requirements. Business acknowledges that some companies utilize 
WARN's ambiguous threshold requirements to find ways to cut 
workers without violating the law, ``we have seen companies out 
there that lay off 45 people a quarter; they just keep clicking 
away at it until they get to that 500-employee figure that they 
want to get to over a year and a half.''\58\
---------------------------------------------------------------------------
    \56\Id. at 16.
    \57\Id. at 4.
    \58\James Drew and Steve Eder, Without Warning: Flaws, Loopholes 
Deny Employees Protection Mandated By WARN Act (July 15, 2007) (quoting 
Mark Wilbur, president and chief executive officer of Employers Group, 
a Los Angeles-based personnel consulting firm. Mr. Wilbur goes on to 
say, ``some people will call it a loophole. The reality is it's the way 
the law is written. If you don't like the law, write your legislator.''
---------------------------------------------------------------------------
    While some employers are savvy and utilize WARN's 
ambiguities to evade responsibility, some employers are simply 
confused by the Act's requirements and unsure of when the Act 
is triggered. GAO found that questions employers and employees 
ask about the application of WARN indicate the difficulties 
they are having in applying its provisions.\59\ Approximately 
36 state Dislocated Worker Units (DWU) reported that they 
receive thousands of inquiries each year into WARN. Employers 
predominately question whether their circumstances require 
notice, while employees inquire as to whether their layoff is 
covered.\60\
---------------------------------------------------------------------------
    \59\GAO 2003 Report at 13.
    \60\Id.
---------------------------------------------------------------------------
            Many employees unknowingly waive their right to a WARN 
                    notice
    Rather than provide a WARN notice, employers often require 
employees waive their right to notice as part of a severance 
agreement.\61\ Waivers are problematic for several reasons. 
First, employees often waive their rights without knowing that 
they could be entitled to back pay for the number of days 
notice was required but not given and agree to less severance 
than they are legally entitled. Second, employers have too much 
leverage over employees who face imminent job loss for the 
employees to properly value these rights that they are asked to 
waive. Third, employees are at a significant disadvantage when 
asked to sign a waiver because severance pay may be so 
important to them they are willing to waive their rights even 
if they would have had a claim. Finally, waiving the right to 
notice undermines Congress' decision to establish a specific 
right.
---------------------------------------------------------------------------
    \61\GAO 2003 Report at 10.
---------------------------------------------------------------------------
    While employees may receive compensation for foregoing a 
WARN notice, the lack of advance notice can have a negative 
impact on a workers ability to access dislocated worker 
services and ultimately become reemployed, ``the state is less 
likely to be able to deploy services to facilitate workers' 
reemployment before the plant closure or mass layoff.''\62\ A 
WARN notice: (1) enables the state dislocated worker units to 
develop a relationship with company and employee 
representatives; (2) allows the DWU to work with the local 
service providers to develop budgets; (3) survey those who will 
be displaced; and (4) compile support from additional community 
service agencies. Most DWU arrive at the worksite within 5 to 7 
working days which helps workers reenter into the job market 
more quickly thus reducing the amount of unemployment insurance 
claims, increasing the saving of social service programs and 
creating an environment where the negative effect on both the 
employer and employees is significantly decreased.\63\
---------------------------------------------------------------------------
    \62\Id. at 10-11.
    \63\Metzenbaum Statement.
---------------------------------------------------------------------------
    Furthermore, waiving the right to a WARN notice can have 
devastating effects on the community at-large. Congress 
intended WARN to also protect communities from the effects of a 
sudden plant closing or mass layoff. Advance notice gives local 
government time to prepare for new burdens on its retraining 
and education programs and gives local businesses a heads up 
that their customers will not be spending what they did in the 
past.\64\ Without time to prepare for a plant closing or mass 
layoff, there can be a spiraling effect on the affected 
community. Less money funneled into the local economy can 
result in many smaller businesses also shutting down and more 
jobs lost. This can result in a decline in property values and 
the erosion of the local tax base, leaving public schools and 
other community services lacking in funds and unable to provide 
for the increased needs of the laid-off workers and their 
families.\65\
---------------------------------------------------------------------------
    \64\Evan Hudson-Plush, NOTE: WARN's Place in the FLSA/ Employment 
Discrimination Dichotomy: Why A Warning Cannot Be Waived. 27 Cardozo L. 
Rev. 2929 (Apr. 2006) at 2.
    \65\Id.
---------------------------------------------------------------------------
            WARN's current remedies are ineffective and inadequate
    The remedies available under WARN have been cited as a 
significant impediment to the Act's effectiveness.\66\ WARN 
currently only provides for a private right of action when an 
employee believes he/she was unlawfully denied a WARN notice. 
The fact that only about one-third of employers comply with 
WARN demonstrates that the current remedy of 60 days' back pay 
and benefits is an inadequate deterrent against employers 
breaking the law. Furthermore, failure to receive notice of 
impending job loss can cause an aggrieved employee to lose 
their home, the healthcare and their livelihood. While workers 
suffer severe harm when notice is not given, employers only 
bear minimal risk for breaking the law because they are only 
liable to an aggrieved employee for straight back pay. Five 
years after WARN's enactment, GAO found that while there were 
over 10,000 violations of the WARN Act since its enactment, the 
vast majority of violations went unenforced.\67\ Between 1988 
and 1993, WARN's enforcement rate was a staggeringly low 1 
percent, only about 100 lawsuits were filed under the Act.\68\
---------------------------------------------------------------------------
    \66\See generally, GAO 2003 Report, Hurwitz Testimony, Ross 
Eisenbrey, ``Stop Corporate Abuse and Fix Layoff Warning Law,'' DET. 
NEWS (Aug. 24, 2007), Metzenbaum Statement.
    \67\GAO 1993 Report. See also, Metzenbaum Statement.
    \68\Id.
---------------------------------------------------------------------------
    The average American worker cannot bear the expense of 
litigation and the remedies available can be minimal at best. 
Employers who violate WARN can mitigate their liability by 
arguing their failure to comply with the Act was in ``good 
faith'' with ``reasonable grounds for believing'' that its 
closure was not a violation of the law. In those cases where 
the employer is found liable, the amount of recovery can be 
significantly diminished depending on where the case is 
decided. Circuit courts interpret the calculation of back pay 
differently. While the law entitles an aggrieved employee to up 
to 60 days' back pay, the law does not specify whether the 60 
days should be interpreted as calendar days or workdays. The 
difference between the two approaches can decrease a recovery 
by almost one-third. Employees who recover 60 calendar days of 
pay receive 1 day wages multiplied by 60, while employees who 
recover 60 work days of pay receive 42 days of wages, the 
number of workdays in a 60-day period. Calculating back pay as 
work days can reduce an aggrieved employee's recovery by 30 
percent.\69\
---------------------------------------------------------------------------
    \69\GAO 2003 Report at 17.
---------------------------------------------------------------------------
    Enforcement of WARN is further stifled by a lack of 
knowledge about the law and a scarcity of lawyers willing to 
take on these cases due to the litigation costs coupled with 
very limited relief.\70\ It is difficult for workers to obtain 
the information they need to determine whether the employer 
violated WARN.\71\ Unlike all other worker protection labor 
laws, DOL currently has no investigative or enforcement 
authority under WARN. It is only authorized to write 
regulations and provide assistance to employers and employees 
in understanding them. Providing DOL with the authority to 
oversee, investigate and bring administrative action against 
culpable employers in conjunction with the individual's private 
cause of action will increase compliance with the law.\72\
---------------------------------------------------------------------------
    \70\Hurwitz Testimony at 2.
    \71\Id.
    \72\Id.
---------------------------------------------------------------------------

Health care realities of workers dislocated by trade

    The loss of health care benefits can have a significant 
impact on displaced workers. Dave Bevard testified to the 
Committee that as if the loss of a job is not overwhelming 
enough, the loss of health care, in his case with a wife 
fighting cancer, can be devastating.\73\ Older workers 
displaced by trade can face even tougher obstacles when trying 
to obtain affordable and adequate health care coverage. 
Coverage outside an employer sponsored health plan is often 
restrictive, expensive and out of reach for many workers.
---------------------------------------------------------------------------
    \73\See generally Bevard Testimony at 3. Bevard testified that he 
was fortunate to have continuing health care coverage through his 
union.
---------------------------------------------------------------------------
    For non-elderly Americans, 74 percent of all health care is 
provided through employers.\74\ Loss of employment often 
results in the termination of health coverage. In fact, job 
loss is the cause of the lack of insurance for two-thirds of 
the uninsured population.\75\
---------------------------------------------------------------------------
    \74\``How Effective Are Existing Programs in Helping Workers 
Impacted by Trade,'' 110th Cong. 1st Sess (2007) (written testimony of 
Stan Dorn, Senior Research Associate, Urban Institute) at 1. 
[Hereinafter Bevard Testimony].
    \75\Id.
---------------------------------------------------------------------------
    Currently, workers who are eligible for TAA qualify for the 
health coverage tax credit (HCTC). The HCTC pays 65 percent of 
the health insurance premiums for displaced workers who receive 
other forms of TAA. The credit is payable in advance to 
insurers, allowing workers to benefit before they file their 
tax returns. It is also refundable: workers can receive the 
full credit even if they have no regular tax liability.\76\ 
Significant problems with the administration of the HCTC have 
been identified. As a result of the program's complexities and 
administrative burdens, only about 28,000 workers access HCTC--
just 11 percent of the potentially 250,000\77\ workers eligible 
to use the HCTC.\78\
---------------------------------------------------------------------------
    \76\Id.
    \77\Id.
    \78\Id.
---------------------------------------------------------------------------
    Providing individuals with the option of extending their 
health insurance through COBRA will often be more affordable 
and allows for continuity in care. Currently, employers who 
offer health insurance are required to provide continued 
coverage for their employees. It was enacted to expand access 
to coverage for those people who become uninsured as a result 
of changes in their employment status. In 2004, there were 
approximately 2.7 million private sector individuals and 
168,760 state and local government COBRA enrollments\79\ with 
an average premium of $360 a month.\80\While employers can 
charge employees 102 percent of the group plan premium (2 
percent is paid to cover the administrative costs), this can be 
much less expensive than coverage available in the individual 
insurance market. Currently, coverage generally lasts 18 
months, but in certain circumstances it can last for longer 
periods.
---------------------------------------------------------------------------
    \79\Agency for Healthcare Research and Quality (2004).
    \80\Kaiser Family Foundation and the Health and Research and 
Educational Trust (2006).
---------------------------------------------------------------------------
    Obtaining long-term continuing coverage for older workers 
can be especially expensive in the individual market because 
the premiums are substantially higher. Consequently, H.R. 3796 
will provide older workers and long-term employees displaced by 
trade with an additional option to ensure that they have 
adequate health coverage until they are re-employed or reach 
Medicare eligibility. H.R. 3796 extends the period of COBRA 
coverage beyond the 18 months currently provided for under law. 
Workers who are TAA eligible and 55 or older or individuals who 
have worked for an employer for 10 or more years have the 
option to elect COBRA coverage until they become Medicare 
eligible at 65 or until they obtain health coverage through a 
subsequent employer.

The need for H.R. 3796

    Job loss that results from a plant closure or permanent 
layoff has a severe emotional and financial impact on 
dislocated workers and their families. Providing workers with 
the information and the time to access information about 
dislocated worker benefits and services before an actual layoff 
or plant closure can have an immediate and lasting impact on 
the workers' ability to secure alternative employment or job 
training. WARN is part of the ``comprehensive set of integrated 
efforts * * * necessary to help the economy adjust to the 
enormous pressures due to globalization.''\81\
---------------------------------------------------------------------------
    \81\Rosen Testimony at 1.
---------------------------------------------------------------------------
    While WARN has helped thousands of workers prepare for 
imminent job loss, it is ``shot through with loopholes that 
greatly weaken its usefulness to workers * * *.''\82\ Reforming 
WARN is ``an integral part of dislocated worker programs.''\83\ 
GAO has identified WARN as an effective tool in notifying 
workers of their eligibility for TAA and can assist them with 
the delivery of services.\84\ Advance warning of a plant 
closure or layoff is critical to helping displaced workers plan 
for the transition, keep their dignity, and start new lives. It 
also gives communities the time to prepare for the local impact 
and minimize the harmful consequences of an impending plant 
closing or permanent layoff.
---------------------------------------------------------------------------
    \82\Testimony before the Senate Subcommittee on Oversight of 
Government Management of the Committee on Governmental Affairs, 93rd 
Cong. 1st Sess. (1993) (written testimony of Harry Browne, Research 
Associate, Inter-Hemispheric Education Resource Center) at 4. 
[Hereinafter Browne Testimony].
    \83\``The Reemployment Act of 1994, H.R. 4050,'' 93rd Cong. 2nd 
Sess. (1994) (written testimony of Richard W. McHugh, Associate General 
Counsel, on behalf of the International Union, United Automobile, 
Aerospace and Agricultural Implement Workers of America (UAW)) at 2. 
[Hereinafter McHugh Testimony].
    \84\``Promoting U.S. Worker Competitiveness,'' 110th Cong. 1st 
Sess. (2007) (written testimony of Sigurd R. Nilsen, Director, 
Education, Workforce, and Income Security Issues, Government 
Accountability Office) (testifying that notifying workers of their TAA 
eligibility has been a challenge. For layoffs in a certified industry, 
agencies could make use of the existing WARN notices to connect with 
workers) at 10. [Hereinafter Nilsen Testimony].
---------------------------------------------------------------------------
    The Early Warning & Health Care for Workers Affected by 
Globalization Act will remedy the deficiencies of WARN and 
strengthen its ability to help workers and communities prepare 
for a mass layoff or plant closing. H.R. 3796 will provide more 
workers with a longer period of time to prepare for imminent 
job loss and will secure the rights of workers by ensuring that 
adequate remedies are available when an employer violates the 
law. Furthermore, H.R. 3796 will assist older and tenured TAA 
eligible workers with securing long-term health care coverage 
through COBRA.

                      Section-by-Section Analysis

    Section 1 is the short title: ``The Early Warning & Health 
Care for Workers Affected by Globalization Act''.

Section 2: Amendments to the Worker Adjustment and Retraining Act

    Section 2(a)(1)``(1)'' defines ``employer'' as any business 
enterprise that employs 100 or more people.
    Section 2(a)(1)``(2)'' defines ``plant closing'' as the 
permanent or temporary shutdown of a single site of employment 
or of one or more facilities within a single site of employment 
which results in an employment loss at such site during any 30-
day period for 25 or more employees.
    Section 2(a)(1)``(3)'' defines ``mass layoff'' as a 
reduction in force at a single site of employment which results 
in an employment loss at such site during any 30-day period for 
25 or more employees.
    Section 2(a)(3)(A) amends the calculation of employees who 
in the aggregate over a 90-day period trigger a pre-layoff 
notice to say the employees which in the aggregate exceed the 
minimum number of employees specified.
    Section 2(a)(3)(B) amends the definition of ``employees'' 
to include part-time employees.
    Section 2(b)(1)(A) and (B) amend the amount of advance time 
with which employers must provide notice from 60 days to 90 
days.
    Section (2)(b)(2) requires that each affected employee 
receive notice of the layoff or plant closing.
    Section 2(b)(2) and (3) require that employers provide the 
Secretary of Labor with a copy of the WARN notice. The 
Secretary of Labor must provide employers with information 
regarding benefits and services available to the workers. In 
addition, the Secretary of Labor must notify the appropriate 
Members of Congress as soon as practicable but no later than 15 
days after a WARN notice is issued.
    Section 2(c)(1) amends the remedies an employee may receive 
to include 2 pay times the number of calendar days short of 90 
days that notice was required but not given.
    Section 2(c)(2) clarifies that the good-faith exception for 
an non-compliant employer is not a complete liability 
exemption. The Act establishes that good-faith exceptions can 
only be used to avoid liability at the remedy stage of a 
lawsuit.
    Section 2(c)(3) provides that an aggrieved individual can 
bring suit against an employer individually and/or file a 
complaint with the Department of Labor.
    Section 2(c)(4) provides the Secretary of Labor with the 
authority to initiate, investigate, and attempt to resolve 
complaints of an employer's failure to comply with the law. The 
Secretary has the authority to bring an action in any court of 
competent jurisdiction to recover backpay, interest, and 
liquidated damages on behalf of an employee.
    Section 2(d) amends Section 11 of the WARN Act to require 
that employers post in conspicuous places upon its premises 
notice of the pertinent information about WARN and information 
about filing a complaint.
    Section 2(d) amends Section 11 of the WARN Act to provide 
that the rights and remedies provided under the Act cannot be 
waived, deferred or lost pursuant to any agreement of 
settlement other than a settlement or agreement negotiated by 
the Secretary of Labor, an attorney general of any State, or a 
private attorney on behalf of affected employees.
    Section 2(d) amends Section 12 of the WARN Act to require 
that the Secretary of Labor maintain a guide of benefits and 
services which may be available to affected employees, 
including trade adjustment assistance, unemployment 
compensation, counseling, pre-training, COBRA benefits, and 
services available under the Workforce Investment Act. The 
Secretary of Labor shall immediately transmit this information 
to an employer who gives a WARN notice.

Section 3: Extension of COBRA benefits to certain TAA eligible 
        individuals

    Section 3(a) Extends the period during which TAA recipients 
can elect to continue health care coverage under COBRA. 
Employees who are 55 or older or individuals who have worked 
for an employer for 10 or more years have the option to elect 
COBRA coverage until they become Medicare eligible at 65 or 
until they obtain health coverage through a subsequent 
employer.
    Section 3(b)(2) provides that the effective date of the 
Section 3(a) amendments be on January 1, 2008. However, in the 
case of a group health plan arranged by collective bargaining 
agreements, the amendments made by Section 3(a) shall not apply 
to plan years beginning before the earlier of (1) the later of 
July 1, 2008 or the expiration of the last collective 
bargaining agreement or (2) 3 years after the date of this 
Act's enactment.

                       Explanation of Amendments

    The Amendment in the Nature of a Substitute is explained in 
the body of this report.
    Ranking Member Howard (``Buck'') McKeon (R-CA) introduced 
an amendment in the nature of a substitute which would have 
amended the Workforce Investment Act. The McKeon substitute was 
withdrawn and no further action was taken it.
    Representative Price (R-GA) introduced an amendment which 
would add a terrorist attack on the United States as a fourth 
exception businesses can assert when failing to notify 
employees 90 days prior to a mass layoff or plant closing. The 
amendment was adopted by voice vote.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. The Committee believes 
that H.R. 3796 will have no significant impact on the 
legislative branch.

                      Regulatory Impact Statement

    The Committee has determined that H.R. 3796 will have 
minimal impact on the regulatory burden.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates.

                           Earmark Statement

    H.R. 3796 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI. 


  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

               New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 3796 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 25, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3796, the Early 
Warning and Health Care for Workers Affected by Globalization 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christina 
Hawley Anthony.
            Sincerely,
                                        Robert A. Sunshine,
                                   (For Peter R. Orszag, Director).
    Enclosure.

H.R. 3796--Early Warning and Health Care for Workers Affected by 
        Globalization Act

    Summary: H.R. 3796 would amend the Worker Adjustment and 
Retraining Notification (WARN) Act, which requires employers to 
provide advance notice of closings and layoffs. The bill would 
expand the number of employers and employees covered by the 
act, and would require employers to provide notice 30 days 
earlier than under current law. In addition, the bill would 
increase civil penalties against employers that violate the law 
and would authorize the Department of Labor (DOL) to 
investigate violations of the law and seek civil action. Under 
current law, redress is available only through the courts. 
Finally, H.R. 3796 would amend the Employee Retirement Income 
Security Act of 1974 (ERISA) to allow certain beneficiaries 
under the Trade Adjustment Assistance (TAA) for Workers program 
to retain health insurance coverage beyond the 18 months 
provided under current law.
    CBO estimates that enacting H.R. 3796 would affect direct 
spending and revenues by increasing costs of the Health Care 
Tax Credit (HCTC) that subsidizes a portion ofthe health 
insurance costs of individuals eligible for TAA. Because that 
tax credit is refundable, a portion of its budget impact is 
recorded as outlays. The Joint Committee on Taxation (JCT) 
estimates that enacting H.R. 3796 would result in additional 
outlays of $16 million over the 2008-2012 period and $55 
million from 2008 through 2017. Additionally, JCT estimates 
that revenues would fall by $6 million over the 2008-2012 
period and $21 million over the 2008-2017 period.
    H.R. 3796 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA). The bill would broaden 
an existing mandate on governmental entities to provide written 
notice of plant closings or layoffs to affected employees, and 
it would increase the number of governmental entities that must 
provide such a notice. CBO estimates that the total cost to 
governmental entities of complying with the mandates in the 
bill would be small and well below the threshold established in 
UMRA ($66 million in 2007, adjusted annually for inflation).
    H.R. 3796 would impose a number of mandates, as defined in 
UMRA, on the private sector. It would require more private 
employers to notify their employees before closing a plant or 
taking a mass layoff action. It would also reduce the threshold 
in the definition of a mass layoff and plant closing so that 
more events would require advance notification. CBO estimates 
that the aggregate cost of complying with those mandates would 
not exceed the threshold established by UMRA for private-sector 
mandates ($131 million in 2007, adjusted annually for 
inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 3796 is shown in the following table. 
The costs of this legislation fall within budget functions 500 
(education, training, employment, and social services) and 550 
(health).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             By fiscal year, in millions of dollars--
                                                   ------------------------------------------------------------------------------------------- 2008-2017
                                                     2008    2009    2010    2011    2012    2013    2014    2015    2016    2017   2008-2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               CHANGES IN DIRECT SPENDING

Estimated Budget Authority........................       2       3       3       4       4       5       6       8       9      11        16         55
Estimated Outlays.................................       2       3       3       4       4       5       6       8       9      11        16         55

                                                                   CHANGES IN REVENUES

Estimated Revenues................................      -1      -1      -1      -1      -2      -2      -2      -3      -4      -4        -6        -21
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that H.R. 
3796 will be enacted near the beginning of fiscal year 2008.

Direct spending and revenues

    H.R. 3796 would amend ERISA to authorize certain 
individuals eligible for TAA (those aged 55 and older or those 
with 10 or more years of service with their employer) to 
maintain their continuation health insurance coverage under 
COBRA for longer than the 18-month limit for other employees. 
That change would allow those individuals to receive a subsidy 
of their COBRA costs for their full TAA eligibility, which is 
up to two years. The Joint Committee on Taxation estimates that 
the provision would increase direct spending associated with 
the health care tax credit by $16 million over the 2008-2012 
period and $55 million over the 2008-2017 period.
    Additionally, JCT estimates that revenues would fall by $6 
million over the 2008-2012 period and $21 million over the 
2008-2017 period.

Spending subject to appropriation

    H.R. 3796 would allow the Department of Labor to receive, 
investigate and attempt to resolve complaints of violations 
under the WARN Act. Under current law, DOL has no enforcement 
requirements, but receives inquiries and provides information 
regarding the act. CBO estimates that carrying out the 
additional requirements would cost less than $500,000 annually.
    Estimated impact on State, local, and tribal governments: 
The WARN Act requires employers to provide at least 60 days 
notice to employees who are likely to be affected by a plant 
closing or mass layoff. H.R. 3796 would increase that 
notification period to 90 days and thus would expand an 
existing intergovernmental mandate. CBO estimates that the 
additional costs to governmental entities would be minimal. The 
bill also would amend the definition of affected employees to 
include part-time employees and would amend the definitions of 
plant closing and mass layoff. Those amendments would increase 
the number of governmental entities that would be required to 
comply with the act. CBO estimates that few new governmental 
entities would be required to comply with the mandate and that 
any additional costs would be small and well below the 
threshold established in UMRA ($66 million in 2007, adjusted 
annually for inflation).
    Estimated impact on the private sector: H.R. 3796 would 
impose a number of private-sector mandates, as defined in UMRA, 
on employers who close plants or take layoff actions by 
changing the thresholds used to define which employers and 
which actions are subject to advance notification. Under the 
bill, part-time employees would no longer be excluded from the 
count of employees. Thus, more employers would meet the 
definition of a covered employer. Under the bill, the 
thresholds of affected employees that define the covered 
actions would be reduced. Thus more layoff and plant closing 
actions would meet the definition of an action requiring 
advance notification. Under the bill, notification would be 
required 90 days before the planned plant closing or mass 
layoff action, up from 60 days under current law. The direct 
cost of these mandates is the cost of preparing and 
distributing the additional notices. CBO estimates that the 
aggregate cost of complying with those mandates would not 
exceed the threshold established by UMRA for private-sector 
mandates ($131 million in 2007, adjusted annually for 
inflation).
    Estimate prepared by: Federal Costs: Christina Hawley 
Anthony; Impact on State, Local, and Tribal Governments: Lisa 
Ramirez-Branum; Impact on the Private Sector: Keisuke Nakagawa.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c) of House rule XIII, the goal 
of H.R. 3796 is to amend the Worker Adjustment and Retraining 
Notification Act to ensure that covered employers give at least 
90-day notice to workers who will be laid off as a result of a 
mass layoff or plant closing. It is also intended to provide 
older or tenured workers displaced by trade with extended group 
health coverage until they become Medicare eligible at 65 or 
secure alternative health care coverage.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 3796. The 
Committee believes that the amendments made by this bill which 
extend collective bargaining rights to public safety employees 
are within Congress' authority under Article I, Section 8 of 
the U.S. Constitution.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 3796. 
However, clause 3(d)(3)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

           WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT


SEC. 2. DEFINITIONS; EXCLUSIONS FROM DEFINITION OF LOSS OF EMPLOYMENT.

  (a) Definitions.--As used in this Act--
          [(1) the term ``employer'' means any business 
        enterprise that employs--
                  [(A) 100 or more employees, excluding part-
                time employees; or
                  [(B) 100 or more employees who in the 
                aggregate work at least 4,000 hours per week 
                (exclusive of hours of overtime);
          [(2) the term ``plant 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, if the shutdown results in 
        an employment loss at the single site of employment 
        during any 30-day period for 50 or more employees 
        excluding any part-time employees;
          [(3) the term ``mass layoff'' means a reduction in 
        force which--
                  [(A) is not the result of a plant closing; 
                and
                  [(B) results in an employment loss at the 
                single site of employment during any 30-day 
                period for--
                          [(i)(I) at least 33 percent of the 
                        employees (excluding any part-time 
                        employees); and
                          [(II) at least 50 employees 
                        (excluding any part-time employees); or
                          [(ii) at least 500 employees 
                        (excluding any part-time employees);]
          (1) the term ``employer'' means any business 
        enterprise that employs 100 or more employees;
          (2) the term ``plant closing'' means the permanent or 
        temporary shutdown of a single site of employment, or 
        of one or more facilities or operating units within a 
        single site of employment, which results in an 
        employment loss at such site, during any 30-day period, 
        for 25 or more employees;
          (3) the term ``mass layoff'' means a reduction in 
        force at a single site of employment which results in 
        an employment loss at such site, during any 30-day 
        period, for 25 or more employees.

           *       *       *       *       *       *       *

          [(8) the term ``part-time employee'' means an 
        employee who is employed for an average of fewer than 
        20 hours per week or who has been employed for fewer 
        than 6 of the 12 months preceding the date on which 
        notice is required.]
          (8) the term ``Secretary'' means the Secretary of 
        Labor or a representative of the Secretary of Labor.
  (b) Exclusions From Definition of Employment Loss.--(1) 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 
plant closing or mass layoff in accordance with section 3 of 
this Act, 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 plant closing or mass layoff in 
accordance with section 3 of this Act. Notwithstanding any 
other provision of this Act, any person who is an employee of 
the seller [(other than a part-time employee)] as of the 
effective date of the sale shall be considered an employee of 
the purchaser immediately after the effective date of the sale.

           *       *       *       *       *       *       *


SEC. 3. NOTICE REQUIRED BEFORE PLANT CLOSINGS AND MASS LAYOFFS.

  (a) Notice to Employees, State Dislocated Worker Units, and 
Local Governments.--An employer shall not order a plant closing 
or mass layoff until the end of a [60-day period] 90-day period 
after the employer serves written notice of such an order--
          (1) to each representative of the affected employees 
        as of the time of the notice [or, if there is no such 
        representative at that time, to each affected employee; 
        and] and to each affected employee;
          (2) to the Secretary; and
          [(2)] (3) to the State or entity designated by the 
        State to carry out rapid response activities under 
        section 134(a)(2)(A) of the Workforce Investment Act of 
        1998, and the chief elected official of the unit of 
        local government within which such closing or layoff is 
        to occur.

           *       *       *       *       *       *       *

  (b) Reduction of Notification Period.--(1) An employer may 
order the shutdown of a single site of employment before the 
conclusion of the [60-day period] 90-day period if as of the 
time that notice would have been required the employer was 
actively seeking capital or business which, if obtained, would 
have enabled the employer to avoid or postpone the shutdown and 
the employer reasonably and in good faith believed that giving 
the notice required would have precluded the employer from 
obtaining the needed capital or business.
  (2)(A) An employer may order a plant closing or mass layoff 
before the conclusion of the [60-day period] 90-day period if 
the closing or mass layoff is caused by business circumstances 
that were not reasonably foreseeable as of the time that notice 
would have been required.

           *       *       *       *       *       *       *

  (C) No notice under this Act shall be required if the plant 
closing or mass layoff is due directly or indirectly to a 
terrorist attack on the United States.

           *       *       *       *       *       *       *

  (d) Determinations With Respect to Employment Loss.--For 
purposes of this section, in determining whether a plant 
closing or mass layoff has occurred or will occur, employment 
losses for 2 or more groups at a single site of employment[, 
each of which is less than the minimum number of employees 
specified in section 2(a) (2) or (3) but which in the aggregate 
exceed that minimum number,] which in the aggregate exceed the 
minimum number of employees specified in section 2(a)(2) or (3) 
and which occur within any 90-day period shall be considered to 
be a plant 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.
  (e) 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 12.
  (f) DOL Notice to Congress.--As soon as practicable and not 
later than 15 days after receiving notification 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 plant 
closing or mass layoff is to occur.

           *       *       *       *       *       *       *


SEC. 5. ADMINISTRATION AND ENFORCEMENT OF REQUIREMENTS.

  (a) Civil Actions Against Employers.--(1) Any employer who 
orders a plant closing or mass layoff in violation of section 3 
of this Act shall be liable to each aggrieved employee who 
suffers an employment loss as a result of such closing or 
layoff for--
          (A) [back pay for each day of violation] two days' 
        pay multiplied by the number of calendar days short of 
        90 that the employer provided notice before such 
        closing or layoff at a rate of compensation not less 
        than the higher of--
                  (i) the average regular rate received by such 
                employee during the last 3 years of the 
                employee's employment; or
                  (ii) the final regular rate received by such 
                employee; [and]
          (B) interest on the amount described in subparagraph 
        (A) calculated at the prevailing rate; and
          [(B)] (C) benefits under an employee benefit plan 
        described in section 3(3) of the Employee Retirement 
        Income Security Act of 1974 (29 U.S.C. 1002(3)), 
        including the cost of medical expenses incurred during 
        the employment loss which would have been covered under 
        an employee benefit plan if the employment loss had not 
        occurred.
[Such liability shall be calculated for the period of the 
violation, up to a maximum of 60 days, but in no event for more 
than one-half the number of days the employee was employed by 
the employer.]

           *       *       *       *       *       *       *

  (4) If an employer which has violated this Act proves to the 
satisfaction of the court that the act or omission that 
violated this Act was in good faith and that the employer had 
reasonable grounds for believing that the act or omission was 
not a violation of this Act the court may, in its discretion, 
[reduce the amount of the liability or penalty provided for in 
this section] reduce the amount of the liability under 
subparagraph (C) of paragraph (1) and reduce the amount of the 
penalty provided for in paragraph (3).
  (5) A person seeking to enforce such liability, including a 
representative of employees or a unit of local government 
aggrieved under paragraph (1) or (3), [may sue] may, either for 
such person or for other persons similarly situated, or both, 
(A) file a complaint with the Secretary alleging a violation of 
section 3, or (B) 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. A person seeking to enforce such liability may use 
one or both of the enforcement mechanisms described in 
subparagraphs (A) and (B).
  (b) Action by the Secretary.--
          (1) Administrative action.--The Secretary shall 
        receive, investigate, and attempt to resolve complaints 
        of violations of section 3 by an employer in the same 
        manner that the Secretary receives, investigates, and 
        attempts to resolve complaints of violations of 
        sections 6 and 7 of the Fair Labor Standards Act of 
        1938 (29 U.S.C. 206 and 207).
          (2) Subpoena powers.--For the purposes of any 
        investigation provided for in this section, the 
        Secretary shall have the subpoena authority provided 
        for under section 9 of the Fair Labor Standards Act of 
        1938 (29 U.S.C. 209).
          (3) Civil action.--The Secretary may bring an action 
        in any court of competent jurisdiction to recover on 
        behalf of an employee the backpay, interest, benefits, 
        and liquidated damages described in subsection (a).
          (4) Sums recovered.--Any sums recovered by the 
        Secretary on behalf of an employee under subparagraphs 
        (A), (B), and (D) of section 5(a)(1) shall be held in a 
        special deposit account and shall be paid, on order of 
        the Secretary, directly to each employee affected. Any 
        such sums not paid to an employee because of inability 
        to do so within a period of 3 years, and any sums 
        recovered by the Secretary under subparagraph (C) of 
        section 5(a)(1), shall be credited as an offsetting 
        collection to the appropriations account of the 
        Secretary of Labor for expenses for the administration 
        of this Act and shall remain available to the Secretary 
        until expended.
          (5) Action to compel relief by secretary.--The 
        district courts of the United States shall have 
        jurisdiction, for cause shown, over an action brought 
        by the Secretary to restrain the withholding of payment 
        of back pay, interest, benefits, or other compensation, 
        plus interest, found by the court to be due to 
        employees under this Act.
  (c) Limitations.--
          (1) Limitations period.--An action may be brought 
        under this section not later than 2 years after the 
        date of the last event constituting the alleged 
        violation for which the action is brought.
          (2) Commencement.--In determining when an action is 
        commenced under this section for the purposes of 
        paragraph (1), it shall be considered to be commenced 
        on the date on which the complaint is filed.
          (3) Limitation on private action while action of 
        secretary is pending.--If the Secretary has instituted 
        an enforcement action or proceeding under subsection 
        (b), an individual employee may not bring an action 
        under subsection (a) during the pendency of the 
        proceeding against any person with respect to whom the 
        Secretary has instituted the proceeding.
  [(b)] (d) Exclusivity of Remedies.--The remedies provided for 
in this section shall be the exclusive remedies for any 
violation of this Act. Under this Act, a Federal court shall 
not have authority to enjoin a plant closing or mass layoff.

           *       *       *       *       *       *       *


SEC. 8. AUTHORITY TO PRESCRIBE REGULATIONS.

  (a) The Secretary [of Labor] shall prescribe such regulations 
as may be necessary to carry out this Act. Such regulations 
shall, at a minimum, include interpretative regulations 
describing the methods by which employers may provide for 
appropriate service of notice as required by this Act.

           *       *       *       *       *       *       *


[SEC. 11. EFFECTIVE DATE.

  [This Act shall take effect on the date which is 6 months 
after the date of enactment of this Act, except that the 
authority of the Secretary of Labor under section 8 is 
effective upon enactment.]

SEC. 11. POSTING OF NOTICES; PENALTIES.

  (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 chapter and 
information pertinent to the filing of a complaint.
  (b) Penalties.--A willful violation of this section shall be 
punishable by a fine of not more than $500 for each separate 
offense.

SEC. 12. RIGHTS AND REMEDIES NOT SUBJECT TO WAIVER.

  (a) In General.--The rights and remedies provided under this 
Act (including the right to maintain a civil action) 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 the Secretary, an attorney general of any State, 
or a private attorney on behalf of affected employees.

SEC. 13. INFORMATION REGARDING BENEFITS AND SERVICES AVAILABLE TO 
                    WORKERS.

  The Secretary of Labor shall maintain a guide of benefits and 
services which may be available to affected employees, 
including unemployment compensation, trade adjustment 
assistance, COBRA benefits, and early access to training and 
other services, including counseling services, available under 
the Workforce Investment Act of 1998. Such guide 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. Upon receiving notice from an employer 
under section 3(a)(2), the Secretary shall immediately transmit 
such guide to such employer.
                              ----------                              


            EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974



           *       *       *       *       *       *       *
TITLE I--PROTECTION OF EMPLOYEE BENEFIT RIGHTS

           *       *       *       *       *       *       *


Subtitle B--Regulatory Provisions

           *       *       *       *       *       *       *


Part 6--Continuation Coverage and Additional Standards for Group Health 
Plans

           *       *       *       *       *       *       *


SEC. 602. CONTINUATION COVERAGE.

  For purposes of section 601, the term ``continuation 
coverage'' means coverage under the plan which meets the 
following requirements:
          (1) * * *
          (2) Period of coverage.--The coverage must extend for 
        at least the period beginning on the date of the 
        qualifying event and ending not earlier than the 
        earliest of the following:
                  (A) Maximum required period.--
                          (i) General rule for terminations and 
                        reduced hours.--[In the case of] 
                        Subject to clause (vi), in the case of 
                        a qualifying event described in section 
                        603(2), except as provided in clause 
                        (ii), the date which is 18 months after 
                        the date of the qualifying event.
                          (ii) Special rule for multiple 
                        qualifying events.--[If a qualifying 
                        event] Subject to clause (vi), if a 
                        qualifying event (other than a 
                        qualifying event described in section 
                        603(6)) occurs during the 18 months 
                        after the date of a qualifying event 
                        described in section 603(2), the date 
                        which is 36 months after the date of 
                        the qualifying event described in 
                        section 603(2).

           *       *       *       *       *       *       *

                          (v) Medicare entitlement followed by 
                        qualifying event.--In the case of a 
                        qualifying event described in section 
                        603(2) that occurs less than 18 months 
                        after the date the covered employee 
                        became entitled to benefits under title 
                        XVIII of the Social Security Act, the 
                        period of coverage for qualified 
                        beneficiaries other than the covered 
                        employee shall not terminate under this 
                        subparagraph before the close of the 
                        36-month period beginning on the date 
                        the covered employee became so 
                        entitled.
                          (vi) Special rule for qualified taa 
                        eligible employees.--In the case of a 
                        qualifying event described in section 
                        603(2), clauses (i) and (ii) shall not 
                        apply to a qualified TAA eligible 
                        employee (as defined in section 
                        607(6)).

           *       *       *       *       *       *       *


SEC. 607. DEFINITIONS AND SPECIAL RULES.

  For purposes of this part--
          (1) * * *

           *       *       *       *       *       *       *

          (6) Qualified taa eligible employee.--The term 
        ``qualified TAA eligible employee'' means a covered 
        employee, with respect to a qualifying event, if--
                  (A) the qualifying event is attributable to 
                the conditions specified in section 222 of the 
                Trade Act of 1974 (19 U.S.C. 2272) based on 
                which the Secretary of Labor has certified a 
                group of workers as eligible to apply for 
                adjustment assistance under subchapter A of 
                chapter 2 of title II of such Act;
                  (B) such certification applies to the covered 
                employee; and
                  (C) as of the date of such qualifying event 
                the covered employee has attained age 55 or has 
                completed 10 or more years of service with the 
                employer.

           *       *       *       *       *       *       *


                        Committee Correspondence

    None.

                             MINORITY VIEWS

                              INTRODUCTION

    Over the last twelve years, Committee Republicans have 
established a long and well-documented history of taking a 
proactive approach to the challenges of globalization, and the 
issues facing American workers and American competitiveness. In 
2004, the Committee brought then-Federal Reserve Chairman Alan 
Greenspan before it to examine in greater detail the obstacles 
our nation faces to continued competitiveness in a changing 
world. The Committee heard at that time that perhaps the single 
most important factor in responding to competitive challenges 
was to bolster our education and training systems to better 
prepare current and future workers for success. Efforts to 
revitalize and enhance these training systems remain the 
linchpin of Republican competitiveness efforts to this day.
    H.R. 3796, the ``Early Warning and Health Care for Workers 
Affected by Globalization Act,'' rejects this approach. Instead 
of offering proactive solutions that will allow American 
workers to compete and thrive, the bill does nothing more than 
layer on additional federal red tape for employers while 
offering only incremental support for workers that will do 
nothing to help them adjust to the changing workplace. The 
massive expansion of the WARN Act (and extension of near-
indefinite eligibility for health coverage under COBRA) 
contemplated under the bill would be incredibly burdensome for 
employers struggling to keep pace with a changing economy, and 
the constraints imposed by these proposals do not match the 
real-world scenarios in which employers may be shifting their 
workforce to meet changing needs.
    H.R. 3796 will expand exponentially the scope of our 
nation's plant closure and health care continuation laws, 
increasing litigation, regulation, and, most troubling, 
liability for businesses struggling to stay competitive in a 
global economy. As a matter of substance, the bill would create 
a system that is more focused on punishing employers than truly 
helping workers who lose their jobs, and for this reason alone 
should be rejected.
    Equally troubling, however, as a matter of process, H.R. 
3796 represents yet another instance of what has become a 
troubling trend in this Committee. With this bill, once more 
Committee Democrats have abandoned even the pretense of 
responsible legislating, instead rushing to report ill-
conceived and wholly unexamined legislation with far-reaching 
consequences, and without the benefit of any substantive 
examination. The evidentiary record to support legislation of 
this scope if not merely lacking--it is in fact a nullity. In 
the absence of compelling evidence to support the sorts of 
changes embodied in H.R. 3796, Congress should reject this 
effort.
    In short, and sadly, H.R. 3796 represents yet another 
example of Committee Democrats' dramatic failure of both policy 
and process, and should be rejected by the House.

                               BACKGROUND

The Worker Adjustment Retraining and Notification (WARN) Act
    In 1988, Congress enacted the Worker Adjustment and 
Retraining Notification Act (the ``WARN Act,'' or the ``Act'') 
to aid workers whose jobs have been terminated due to large-
scale layoffs or plant closing.\1\ The WARN Act was intended to 
focus dislocated worker resources and to provide adequate 
notice where a significant number of employees would be losing 
their jobs in a single location or community.\2\
---------------------------------------------------------------------------
    \1\See P.L. 100-379, codified at 29 U.S.C. Sec. 2101 et seq.
    \2\Notably, nothing in the WARN Act under current law (or as 
proposed to be amended by H.R. 3796) limits the Act's applicability to 
situations where jobs are lost due to foreign competition or trade; 
rather, under the law, where WARN Act notice is required as a function 
of meeting specified statutory thresholds, it is required irrespective 
of the reason for the imminent job losses.
---------------------------------------------------------------------------
    The WARN Act generally requires that a covered employer 
(typically, a single employer of 100 or more workers, excluding 
part-time employees) must provide at least 60 days' notice to 
employees (or, where a union is present and representing 
employees, to the union) and to local officials (the state 
dislocated worker unit and the chief elected official of the 
municipality) prior to engaging in a ``plant closing'' or 
``mass layoff' that results in job losses of a certain size. 
The Act defines ``plant closing'' as the closure of a single 
site of employment which results in loss of 50 jobs (excluding 
part-time workers) during a 30-day period; a ``mass layoff' is 
defined as a reduction in force at a single site of employment 
that results in either: (a) 50 lost jobs representing at least 
33 percent of employees (excluding part-time workers); or (b) 
500 lost jobs (irrespective of the percentage of the workforce, 
and still excluding part-time workers).\3\
---------------------------------------------------------------------------
    \3\See 29 U.S.C. Sec. Sec. 2101(a)(2), (3). In addition, in certain 
instances, multiple job dislocations must be aggregated and calculated 
across a 90-day period. See 29 U.S.C. 2102(d).
---------------------------------------------------------------------------
    An employer that fails to provide statutory notice under 
the WARN Act generally may be held liable for up to 60 days' 
pay and benefits to those employees that have lost their jobs. 
The Act is enforced by way of a private right-of-action; an 
individual may bring suit in federal court on behalf of himself 
and others similarly situated.
Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA)
    Enacted as part of budget reconciliation legislation in 
1986, the Consolidated Omnibus Budget Reconciliation Act of 
1986 (COBRA) generally provides that when an employee loses his 
or her health insurance because of a job loss, he or she is 
eligible to continue health coverage under the former 
employer's health plan for up to 18 months (or, in limited 
instances, 36 months).
    During the COBRA period, the employee is responsible for 
bearing the full expense of coverage and a nominal 
administrative fee which can total no more than 102 percent of 
the monthly COBRA premium cost.\4\ An individual's eligibility 
for continuation coverage under COBRA generally terminates at 
the earliest of: (a) the end of his or her specified COBRA 
period; (b) when he or she obtains health care coverage under a 
new employer's plan; or (c) when the individual is eligible for 
Medicare.
---------------------------------------------------------------------------
    \4\In 2002, the Trade Adjustment Act (TAA) was amended to provide a 
refundable tax credit (the Health Care Tax Credit or HCTC) which covers 
up to 65 percent of the costs of health coverage (including COBRA 
premiums) for TAA-eligible individuals. TAA-eligible individuals are 
still subject to the COBRA limitations periods (18 or 36 months). An 
employee is eligible for the HCTC so long as he or she is receiving TAA 
benefits.
---------------------------------------------------------------------------

H.R. 3796, THE ``EARLY WARNING AND HEALTH CARE FOR WORKERS AFFECTED BY 
                          GLOBALIZATION ACT''

    On October 10, Chairman Miller introduced H.R. 3796, the 
``Early Warning and Health Care for Workers Affected by 
Globalization Act,'' legislation amending both the WARN Act and 
COBRA.
WARN Act provisions
    With respect to the WARN Act, H.R. 3796, inter alia:
           Expands WARN Act coverage to apply to any 
        business which employs 100 or more employees, including 
        part-time workers;
           Expands the definition of ``plant closing'' 
        to include the closure of a single site of employment 
        which results in the loss of at least 25 jobs 
        (including part-time workers) during any 30-day period;
           Expands the definition of ``mass layoff' to 
        include a reduction in force at a single site of 
        employment that results in the loss of at least 25 jobs 
        (including part-time workers, and irrespective of the 
        percentage of the workforce represented) during any 30-
        day period.
           Expands the definitions of ``plant closing'' 
        and ``mass layoff' to include job losses of 100 or more 
        employees (including part-time workers) at aggregated 
        ``multiple sites'' of a single employer;
           Increases WARN Act notice requirement and 
        liability from 60 to 90 days;
           Provides for new, automatic liquidated 
        double damages equal to lost wages and benefits for up 
        to 90 days;
           Expands the notice requirement where a union 
        is present to include requirement of notice to each 
        individual worker;
           Includes new requirements that employers 
        provide notices of benefits and services available to 
        employees and of WARN Act requirements and information 
        as to how to file a complaint; and
           Adopts a two-year statute of limitations on 
        claims brought under the Act.
COBRA provisions
    H.R. 3796 would expand COBRA eligibility in circumstances 
where: (a) an individual loses health coverage as a result of 
losing his or her job; (b) the individual is certified by the 
Department of Labor (DOL) as TAA-eligible; and (c) the 
individual: (1) is at least 55 years old; or (2) has at least 
10 years of service with the employer. If so qualified, that 
individual may elect COBRA coverage and continue such coverage 
indefinitely. Thus under H.R. 3796, a qualified individual's 
COBRA eligibility would only lapse when either; (a) he or she 
obtains coverage under a new employer's heath plan, or (b) 
becomes eligible for Medicare.

                          LEGISLATIVE ACTIVITY

    H.R. 3796 was introduced on October 10, 2007.
    No hearing on H.R. 3796 was held in the Committee on 
Education and Labor subcommittee with jurisdiction over the 
WARN Act, the Subcommittee on Workforce Protections.
    No hearing on H.R. 3796 was held in the Committee on 
Education and Labor subcommittee with jurisdiction over COBRA, 
the Subcommittee on Health, Employment, Labor, and Pensions.
    No hearing on H.R. 3796 was held in the Committee on 
Education and Labor.\5\
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    \5\At the closest thing to a relevant hearing held in the 110th 
Congress--a March 2007 hearing on ``globalization'' and ``trade 
adjustment assistance for workers''--not one of the five witnesses 
called by the Democrats (nor the single witness allowed to be called by 
Republicans) so much as mentioned the WARN Act (nor did any advocate 
for the expansion of COBRA eligibility contained in this legislation). 
See Committee on Education and Labor Hearing, ``How Effective Are 
Existing Programs in Helping Workers Impacted by International Trade?'' 
(March 26, 2007), available at: http://edlabor.house.gov/hearings/
fc032607.shtml.
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    The Subcommittee on Workforce Protections did not meet to 
mark up H.R. 3796.
    The Subcommittee on Health, Employment, Labor, and Pensions 
did not meet to mark up H.R. 3796.
    On Thursday, October 18, 2007, eight days after its 
introduction, the Committee on Education and Labor met to mark 
up H.R. 3796. An Amendment in the Nature of a Substitute was 
offered by Chairman Miller. An Amendment to the Miller 
Substitute in the Nature of a Substitute was offered by Senior 
Republican Member Howard P. ``Buck'' McKeon and withdrawn. An 
amendment to the Miller Substitute offered by Representative 
Tom Price was accepted by voice vote. The Miller Substitute was 
further amended by the adoption of an amendment by Chairman 
Miller by unanimous consent. The Miller Substitute, as amended, 
was adopted by voice vote.
    The Committee favorably reported H.R. 3796, as amended, on 
a rollcall vote of 26 to 18. Republican Committee Members were 
unanimous in their opposition to reporting the bill favorably 
to the House of Representatives.

                  COMMITTEE CONSIDERATION OF H.R. 3796

    A series of amendments was offered during Committee 
consideration of H.R. 3796.
    McKeon Amendment in the Nature of a Substitute. Committee 
Republicans support efforts to bolster our nation's education 
and training systems to better prepare current and future 
workers for success. Such an approach recognizes that 
addressing challenges to American competiveness must be on a 
comprehensive basis, and rejects the increased regulation 
contemplated by H.R. 3796--regulation which will serve only to 
negatively impact our nation's small and large businesses and 
do nothing for the American worker that has lost his or her job 
as a result of increased trade and globalization.
    To that end, Senior Republican Member McKeon offered an 
amendment in the nature of a substitute that would have 
reauthorized and strengthened the Workforce Investment Act 
(WIA). Instead of adding to economic instability, the McKeon 
Substitute (which was similar to the text of H.R. 3747, the 
``Workforce Investment Improvement Act'' which Committee 
Republicans introduced on October 4, 2007) would have built on 
and improved our nation's job training system so that it could 
respond quickly and effectively to the changing needs of both 
workers and employers and enhance skills and improve career 
opportunities in the 21st century workforce.
    The McKeon Substitute would have improved job training 
opportunities for Americans striving to get back to work by 
streamlining unnecessary bureaucracy, increasing cooperation 
among workforce development partners, allowing faith-based 
service providers to participate in the job training system, 
fostering regional economic development, and promoting the 
creation of high-skill and high-wage opportunities. 
Notwithstanding the substantive merits of this approach, in the 
face of parliamentary concerns which would have prevented 
consideration of the McKeon Substitute, the amendment was 
withdrawn.
    Miller Amendment in the Nature of a Substitute. At markup, 
Chairman Miller offered an Amendment in the Nature of a 
Substitute. The Miller Substitute made several changes to the 
base text of H.R. 3796. Specifically, the Miller Substitute:
           Eliminated H.R. 3796's expansion of covered 
        plant closures and mass layoffs to include aggregated 
        job losses at multiple sites of employment;
           Expanded liability under the WARN Act to 
        eliminate the current-law provision that caps liability 
        at pay and benefits for no more than one-half the 
        number of days a worker has been employed, and revised 
        H.R. 3796's liquidated damages provision to provide for 
        double damages;
           Expanded notice-of-services requirements 
        imposed under the bill on the Secretary of Labor;
           Eliminated the right of an individual to 
        knowingly, freely, and voluntarily waive his or her 
        rights under the WARN Act, even in exchange for 
        significant consideration; and
           Authorized the Secretary of Labor to use 
        unobligated H-1B visa fees to pay health insurance 
        premiums under COBRA for eligible individuals under the 
        bill.
    The Miller Substitute was adopted by the Committee by voice 
vote.
    Price Amendment. Representative Tom Price (R-GA) offered an 
amendment which provides that no notice under the WARN Act is 
required where a plant closure or mass layoff is due, directly 
or indirectly, to a terrorist attack on the United States. The 
Price Amendment ensures that where an employer is forced to 
close a facility or layoff workers because of a terrorist 
attack, that employer is not bogged down in legal ``red tape'' 
or later subject to second-guessing that it should have given 
advance notice of its business closure.
    The WARN Act currently recognizes a limited number of 
exceptions to notice requirements--for example, where job 
losses are caused by a natural disaster, or unforeseen business 
circumstances. The Price Amendment builds on these exceptions. 
That said, in contrast to the requirement that an employer 
provide reduced notice where a covered job loss is the result 
of unforeseen business circumstances, the Price Amendment 
excuses notice entirely where a covered loss is a result of a 
terrorist attack. Similarly, insofar as regulations promulgated 
under the WARN Act exception for natural disasters draw a 
distinction between covered losses that are directly versus 
indirectly caused by a natural disaster,\6\ the Price Amendment 
expressly avoids this distinction by excusing all notice where 
a covered event is the result of a terrorist attack, whether 
directly or indirectly. The Price Amendment was adopted by 
voice vote.
---------------------------------------------------------------------------
    \6\See 20 CFR 639.0 (distinguishing application of exception where 
plant closing or mass layoff is indirectly caused by natural disaster).
---------------------------------------------------------------------------
    Miller Amendment to Strike H-1B Fee Program. Chairman 
Miller asked unanimous consent to strike the provision 
contained in his Substitute relating to the authorization of 
the Department of Labor to use of H-1B visa fees to defray the 
cost of COBRA premiums. The Chairman indicated that the COBRA 
offset provision had been included due to a technical error. 
The Miller Amendment striking the H-1B Fee Program was adopted 
by unanimous consent.

                            REPUBLICAN VIEWS

    Fundamentally, H.R. 3796 represents a misguided approach to 
addressing issues of competitiveness and the dislocation of 
some jobs due to foreign trade and overseas competition. In 
contrast to forward-looking, proactive approaches supported by 
Committee Republicans, H.R. 3796 would dramatically expand the 
burdens of federal regulation and mandates on employers. The 
bill does nothing to minimize job loss to foreign competition 
or the impact of trade and competition on workers, and 
represents a failure of both policy and process. Committee 
Republicans were unanimous in rejecting this measure.

H.R. 3796 exponentially expands the scope of and liability under the 
        WARN Act

    Foremost, H.R. 3796 would exponentially expand the burdens 
of the WARN Act on employers by increasing both the number of 
employers subject to the Act and the number of events which 
trigger WARN Act notice requirements. It is axiomatic that such 
increases translate into both increased compliance costs and 
increased penalties for failure to comply.
    Under H.R. 3796, the scope of WARN Act coverage is extended 
by, for the first time, including in the Act's 100-employee 
threshold part-time employees. At the same time, WARN Act 
``triggers'' are cut in half--under the bill, both ``plant 
closing'' and ``mass layoff'' notice requirements would be 
triggered by losses of as few 25 employees. Equally important, 
the bill eliminates entirely any requirement that 25 laid-off 
employees represent any significant portion of an employer's 
workforce; indeed, a large employer of 25,000 employees can 
trigger ``mass layoff'' notice by laying off as few as 25 
employees--less than one-tenth of one percent--over a 90-day 
period.
    The result of these changes is that an increasing number of 
employers will now have to centralize all personnel decisions 
and plan even minor changes to the workforce more than 90 days 
out. This is not only logistically near-impossible, but also 
would greatly limit employers' responsiveness to local markets 
and customer needs, and the need to maintain competitive 
flexibility.
    As to liability, the bill is almost limitless in its 
perniciousness. First, it increases the required notice period 
by fully fifty percent, from 60 days to 90 days. Second, it 
provides for the automatic doubling of back pay and benefits 
for even inadvertent non-compliance, and limits the ability of 
an employer who acted in good faith to limit its liability. 
Third, it provides that a worker is entitled to 90 calendar 
days of back pay and benefits (of course, doubled)--even where 
it is beyond dispute that the worker would not have worked 90 
days in that time period. Finally, it eliminates the provision 
in current law which caps damages at back pay for no more than 
one-half the number of days which a worker has been 
employed.\7\ Taken in concert, these provisions transform the 
WARN Act from a statute requiring notice to employees where 
there is significant job dislocation to a mandatory ``six month 
severance package'' bill for every terminated employee. It is 
beyond serious debate that these increased compliance burdens 
and costs will undermine the ability of employers to preserve 
American jobs or create new ones.
---------------------------------------------------------------------------
    \7\Indeed, under the Miller bill, an employer can start his very 
first day of work on a Friday; if the plant closes on Monday, that one 
day of work has gifted the employee with six months of pay and 
benefits.
---------------------------------------------------------------------------
    Finally, the bill vastly increases the administrative 
burdens of WARN Act administration on the Department of Labor, 
and federalizes what has long been a private enforcement scheme 
by granting broad authority to the Secretary of Labor to 
enforce the Act's requirements. The Department itself has 
raised serious concerns with these provisions, and has 
suggested that they are counterproductive and ill-advised:

          [H.R. 3796] would also provide a new, significant 
        enforcement role for the Department of Labor under the 
        WARN Act. Currently, the WARN Act requirements may be 
        enforced by civil actions brought by employees or 
        unions. In addition to these civil actions, the bill 
        would provide for the Department to receive and 
        investigate complaints regarding noncompliance, and to 
        bring civil actions in federal court to recover damages 
        due employees. The Department believes this enforcement 
        role would place the Department in an adversarial 
        position with respect to employers on worker adjustment 
        matters, which could impede the Department's ability to 
        work with businesses in providing services to their 
        employees, especially in facilitating on-site rapid 
        response services and TAA-relates services that depend 
        on effective partnerships with employers. The 
        enforcement role also would require the creation of a 
        new bureaucracy and potentially significant 
        administrative costs.\8\

    \8\Letter from Kristine A. Iverson, Assistant Secretary for 
Congressional and Intergovernmental Affairs, Department of Labor, to 
Chairman George Miller dated October 17, 2007 (hereinafter, ``DOL 
Letter'') (emphasis added).
---------------------------------------------------------------------------
    In short, against a range of measures, the WARN Act 
provisions of H.R. 3796 are fundamentally anti-competitive, and 
likely to have the absurd result of weakening U.S. employers' 
ability to compete with their foreign competitors and preserve 
U.S. jobs.

H.R. 3796 increases the administrative burdens and costs of COBRA

    Unfortunately, H.R. 3796 does not limit itself to 
increasing the administrative and substantive burdens of our 
nation's plant closing laws, but instead adds burdens on 
employers already struggling to provide affordable health care 
coverage for workers.
    The COBRA provisions contained in H.R. 3796 will increase 
administrative burdens for employers, potentially pushing more 
employers (and their workers) out of the voluntary health care 
system. H.R. 3796 conceivably requires an employer to continue 
to enroll former employees in its health plan for decades 
(e.g., a younger worker with ten years of service is 
potentially COBRA-eligible for decades until he or she is 
eligible for Medicare). This increased administrative burden on 
employers translates into additional expense, at a time when 
many employers are struggling to provide or maintain high 
quality health care coverage for employees because of cost.
    Moreover, H.R. 3796 threatens to raise premium costs for 
employers. By requiring employers to maintain extended coverage 
for these individuals in employer-sponsored health plans, 
perhaps decades after they have left employment, employers will 
have to include such individuals in premium calculations. This 
has the potential to increase risk for the plan, and more 
important, the cost of risk-based premiums and coverage.\9\
---------------------------------------------------------------------------
    \9\Although in many instances an employee bears the cost of 
extended COBRA coverage, this is not always the case. For example, the 
2002 Trade Adjustment Act amendments provided for a refundable health 
care tax credit that covers up to 65 percent of the costs of health 
coverage (including COBRA premiums) for TAA-eligible individuals; it is 
reported that this 65 percent figure will be increased when the House 
takes up reauthorization of TAA.
---------------------------------------------------------------------------
    In addition, DOL suggests that the COBRA provisions of H.R. 
3796 may result in an additional $100 million cost to trade-
impacted former employers; DOL has expressed concern that 
inasmuch as many of these employers are likely experiencing 
financial hardship, the bill could, at the margins, result in 
an employer terminating the health plan. Alternately, DOL 
notes, H.R. 3796 may simply serve to ``crowd out'' other 
insurance that the worker would otherwise purchase or obtain 
from a new employer.\10\
---------------------------------------------------------------------------
    \10\See DOL Letter at 2.
---------------------------------------------------------------------------

H.R. 3796 is yet another example of a flawed Democrat committee process

    No evidence before the Committee suggests that the dramatic 
expansion of the WARN Act and COBRA contemplated in H.R. 3796 
is warranted or necessary. There has been not a single 
legislative hearing on this proposal or anything like it, nor 
has any record established the need for, wisdom, or 
consequences of the provisions contained in the bill.\11\ As 
noted earlier, at the full Committee's only examination of 
``competitiveness'' and ``trade dislocation'' issues, not one 
of the five witnesses called by the Democrats (nor the single 
witness allowed to the Minority) so much as mentioned the WARN 
Act, or the expansion of COBRA contemplated in H.R. 3796.\12\
---------------------------------------------------------------------------
    \11\For example, the Democrat Majority trumpets a provision 
contained within the Miller Substitute that eliminates the ability of a 
worker to freely, knowingly, and voluntarily waive his or her rights 
under the WARN Act in exchange for enhanced severance pay (not required 
by law to be paid) from his or her employer. It is no breathtaking leap 
to predict that this provision will result in fewer employers offering 
these severance benefits to employees, inasmuch as no amount of 
severance will shield them from clever plaintiffs' lawyers down the 
road.
    \12\Indeed, while the Majority's Views appear to recount in numbing 
detail every legislative proposal even remotely related to worker 
dislocation introduced in the Congress since 1985 (years before the 
enactment of the WARN Act), the last hearing examining these issues to 
which they are able to cite occurred fifteen years ago.
---------------------------------------------------------------------------
    Indeed, in many respects H.R. 3796 represents yet another 
episode of a heavy-handed Democrat majority rushing to 
legislate--even where stakeholders, regulators, and simple 
logic dictate otherwise. H.R. 3796 was all of eight days old 
when it was rushed to markup--the Substitute adopted by the 
Committee had seen less than twenty-four hours in print. The 
unintended (and, in some instances, intended) consequences of 
this legislation have not begun to be realized, and the flaws 
in the bill indict the unilateral process by which it was 
brought to consideration.

                               CONCLUSION

    H.R. 3796 is fundamentally flawed as a matter of policy. 
Instead of offering proactive solutions that will allow 
American workers to compete and thrive, the bill simply expands 
regulation and liability, adding to the burdens on employers 
already under enormous competitive pressure, while doing 
nothing to provide real help to workers facing job loss.
    The policy failings contained in H.R. 3796 underscore what 
has too often become a pattern in the Committee with respect to 
consideration of legislation--particularly contentious 
legislation. In pushing through hastily-drafted and wholly 
unexamined legislation, once more the Democrat Majority has 
completely abandoned any semblance of regular order and the 
Committee's legislative process. The flawed legislative product 
that is the result of this abandonment represents a grave 
disservice to the Committee and its Members, one which should 
be rejected by the House.
    For all of these reasons, we oppose the passage of H.R. 
3796.

                                   Howard P. McKeon.
                                   Tom Petri.
                                   Peter Hoekstra.
                                   Mark Souder.
                                   Judy Biggert.
                                   Todd R. Platts.
                                   Joe Wilson.
                                   John Kline.
                                   Cathy McMorris Rodgers.
                                   Thomas Price.
                                   Luis Fortuno.
                                   C.W. Boustany, Jr.
                                   Rob Bishop.
                                   David Davis.
                                   Tim Walberg.

                                  
