Dear Littler: We are planning a layoff that will involve many of our employees who are working remotely during the pandemic.  How do we decide who works at a particular location for WARN counting purposes?

                                                       —Counting in Columbus

Dear Counting,

You raise a great question.  As you note, you may have an obligation under the federal Worker Adjustment and Retraining Notification (WARN) Act to give advance notice to employees who suffer job losses at a single site of employment if the layoffs at that single site of employment involve a covered plant closing or mass layoff.  A covered plant closing requires 50 or more job losses in one or more closing “operating units” at a single site of employment. A covered mass layoff requires 50 or more job losses that also involves at least 33% of the employees at the single site of employment.  Thus, it is important to determine which employees are “countable” towards those thresholds at the single site of employment, when many employees actually are working at home.

There is virtually no legal authority addressing counting remote workers during a pandemic.  We expect, however, that this may become an issue in WARN litigation filed because of pandemic-related events.  It seems reasonably likely that courts will attribute individuals working temporarily from home to their former physical worksite for WARN counting purposes.  There is a WARN regulation that requires workers who are “outstationed” or whose primary duties involve work outside the employer’s regular employment sites to be attributed to any of three locations: (1) their assigned “home base,” (2) the location from which their work is assigned, or (3) the location to which they report.  29 CFR §639.3(i)(6).  While it is not clear that this regulation applies to work-from-home assignments because of the pandemic, the former worksite likely is the remote worker’s home base, thus making those employees countable at that former worksite under WARN.   

What if Remote Work Becomes Permanent?

Different reasoning may apply if you have made work-from-home a permanent arrangement or the employee is working from a distant remote location.  As most pandemic-related telework has extended for over 10 months, record numbers of employees are relocating – some even to foreign countries.  The employer and potentially the courts will consider all facts in these instances to determine whether the “outstationed” WARN regulation applies, and if so, which of the three possible attribution locations under the regulation is appropriate.  This raises a variety of possibilities including that the location of the employee’s supervisor or manager could be the single site of employment because that is where the employee reports or receives job assignments, or even that the employee’s new remote location could be deemed the employee’s single site of employment.  In addition, state mini-WARN statutes might also require other considerations, resulting in a different conclusion for counting under those statutes.

Other Issues

As you review this problem, keep in mind that WARN is but one of many areas of employment law affected by the trend of employees relocating as work-from-home arrangements continue longer than expected.  An employee relocation outside the employer’s regular employment sites also might:

• affect state and local taxation, including “nexus” coverage;
• require registration to do business in new jurisdictions;
• impose additional or new paid sick leave obligations;
• affect counting issues under the Family and Medical Leave Act and similar state laws;  
• require payment of a different minimum wage or salary to be exempt from overtime;
• require different meal and rest break compliance;  
• impose considerable additional wage and hour obligations, including a change in available exemptions under a different state law;
• require new job posters, pay data reporting, and hiring notifications;
• impose wage-theft notice requirements where none previously existed;
• change workers’ compensation obligations;
• create unemployment insurance payment obligations; and
• involve consideration of other conflicting laws, including extraterritorial application of a variety of state laws.

So, Counting in Columbus, determining where an employee “works” for WARN Act purposes will depend largely on whether working from home was a temporary change caused by the pandemic, or whether your workforce has permanently shifted to remote work. Then you will need to examine the other factors discussed above, preferably with counsel, as the issue is complex and often jurisdiction-specific.  The pandemic, and the resulting changes in the way we work, have clearly raised many new challenges, and WARN counting is just another example.