29 USCS § 2101 (2000)
CONTENTS:
§ 2101. Definitions; exclusions from definition of
loss of employment
§
2102. Notice required before plant closings and mass layoffs
§
2104. Administration and enforcement of requirements
§
2105. Procedures in addition to other rights of employees
§
2106. Procedures encouraged where not required
§
2107. Authority to prescribe regulations
§
2109. Report on employment and international competitiveness
(a) Definitions. As
used in this Act [29 USCS §§ 2101 et seq.]--
(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);
(4) the term "representative" means an exclusive
representative of employees within the meaning of section 9(a) or 8(f) of the
National Labor Relations Act (29 U.S.C. 159(a), 158(f)) or section 2 of the
Railway Labor Act (45 U.S.C. 152);
(5) the term "affected employees" means employees
who may reasonably be expected to experience an employment loss as a
consequence of a proposed plant closing or mass layoff by their employer;
(6) subject to subsection (b), the term "employment
loss" means (A) an employment termination, other than a discharge for
cause, voluntary departure, or retirement, (B) a layoff exceeding 6 months, or
(C) a reduction in hours of work of more than 50 percent during each month of
any 6-month period;
(7) the term "unit of local government" means any
general purpose political subdivision of a State which has the power to levy
taxes and spend funds, as well as general corporate and police powers; and
(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.
(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 [29 USCS §
2102], 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 [29 USCS § 2102]. Notwithstanding any
other provision of this Act [29 USCS §§ 2101 et seq.], 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.
(2) Notwithstanding subsection (a)(6), an employee may not be
considered to have experienced an employment loss if the closing or layoff is
the result of the relocation or consolidation of part or all of the employer's business
and, prior to the closing or layoff--
(A) the employer offers to transfer the employee to a
different site of employment within a reasonable commuting distance with no
more than a 6-month break in employment; or
(B) the employer offers to transfer the employee to
any other site of employment regardless of distance with no more than a 6-month
break in employment, and the employee accepts within 30 days of the offer or of
the closing or layoff, whichever is later.
(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
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
(2) 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 [29 USCS § 2864(a)(2)(A)], and the chief elected
official of the unit of local government within which such closing or layoff is
to occur.
If there is more than one such unit, the unit of local government which the
employer shall notify is the unit of local government to which the employer
pays the highest taxes for the year preceding the year for which the
determination is made.
(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 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 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.
(B) No notice under this Act [29 USCS §§ 2101 et
seq.] shall be required if the plant closing or mass layoff is due to any form
of natural disaster, such as a flood, earthquake, or the drought currently
ravaging the farmlands of the United States.
(3) An employer relying on this subsection shall give as much
notice as is practicable and at that time shall give a brief statement of the
basis for reducing the notification period.
(c) Extension of layoff period. A layoff of more than 6 months which, at
its outset, was announced to be a layoff of 6 months or less, shall be treated
as an employment loss under this Act [29 USCS §§ 2101 et seq.] unless--
(1) the extension beyond 6 months is caused by business
circumstances (including unforeseeable changes in price or cost) not reasonably
foreseeable at the time of the initial layoff; and
(2) notice is given at the time it becomes reasonably
foreseeable that the extension beyond 6 months will be required.
(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) [29 USCS § 2101(a)(2) or (3)] but which in
the aggregate exceed that minimum number, 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 [29 USCS §§ 2101 et seq.].
This Act [29 USCS §§ 2101
et seq.] shall not apply to a plant closing or mass layoff if--
(1) the closing is of a temporary facility or the closing or layoff is the
result of the completion of a particular project or undertaking, and the
affected employees were hired with the understanding that their employment was
limited to the duration of the facility or the project or undertaking; or
(2) the closing or layoff constitutes a strike or constitutes a lockout
not intended to evade the requirements of this Act [29 USCS §§ 2101 et seq.].
Nothing in this Act [29 USCS §§ 2101 et seq.] shall require an employer to
serve written notice pursuant to section 3(a) of this Act [29 USCS § 2102(a)]
when permanently replacing a person who is deemed to be an economic striker
under the National Labor Relations Act: Provided, That nothing in this Act [29
USCS §§ 2101 et seq.] shall be deemed to validate or invalidate any judicial or
administrative ruling relating to the hiring of permanent replacements for
economic strikers under the National Labor Relations Act.
(a) Civil actions
against employers.
(1) Any employer who orders a plant closing or mass layoff in
violation of section 3 of this Act [29 USCS § 2102] 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 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) 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.
(2) The amount for which an employer is liable under
paragraph (1) shall be reduced by--
(A) any wages paid by the employer to the employee
for the period of the violation;
(B) any voluntary and unconditional payment by the
employer to the employee that is not required by any legal obligation; and
(C) any payment by the employer to a third party or
trustee (such as premiums for health benefits or payments to a defined
contribution pension plan) on behalf of and attributable to the employee for
the period of the violation.
In addition, any liability incurred under paragraph (1)
with respect to a defined benefit pension plan may be reduced by crediting the
employee with service for all purposes under such a plan for the period of the
violation.
(3) Any employer who violates the provisions of section 3
with respect to a unit of local government shall be subject to a civil penalty
of not more than $ 500 for each day of such violation, except that such penalty
shall not apply if the employer pays to each aggrieved employee the amount for
which the employer is liable to that employee within 3 weeks from the date the
employer orders the shutdown or layoff.
(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.
(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 either for such person or for other persons
similarly situated, or both, 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.
(6) In any such suit, the court, in its discretion, may allow
the prevailing party a reasonable attorney's fee as part of the costs.
(7) For purposes of this subsection, the term[,]
"aggrieved employee" means an employee who has worked for the
employer ordering the plant closing or mass layoff and who, as a result of the
failure by the employer to comply with section 3 [29 USCS § 2102], did not
receive timely notice either directly or through his or her representative as
required by section 3 [29 USCS § 2102].
(b) Exclusivity of remedies. The remedies provided for in this section
shall be the exclusive remedies for any violation of this Act [29 USCS §§ 2101
et seq.]. Under this Act [29 USCS §§ 2101 et seq.], a Federal court shall not
have authority to enjoin a plant closing or mass layoff.
The rights and remedies
provided to employees by this Act [29 USCS §§ 2101 et seq.] are in addition to,
and not in lieu of, any other contractual or statutory rights and remedies of
the employees, and are not intended to alter or affect such rights and
remedies, except that the period of notification required by this Act shall run
concurrently with any period of notification required by contract or by any
other statute.
It is the sense of
Congress that an employer who is not required to comply with the notice
requirements of section 3 [29 USCS § 2102] should, to the extent possible,
provide notice to its employees about a proposal to close a plant or
permanently reduce its workforce.
(a) The Secretary of
Labor shall prescribe such regulations as may be necessary to carry out this
Act [29 USCS §§ 2101 et seq.]. 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 [29 USCS §§
2101 et seq.] .
(b) The mailing of notice to an employee's last known address or inclusion
of notice in the employee's paycheck will be considered acceptable methods for
fulfillment of the employer's obligation to give notice to each affected
employee under this Act [29 USCS §§ 2101 et seq.] .
The giving of notice
pursuant to this Act [29 USCS §§ 2101 et seq.], if done in good faith
compliance with this Act [29 USCS §§ 2101 et seq.], shall not constitute a
violation of the National Labor Relations Act or the Railway Labor Act.
Two years after the date
of enactment of this Act [enacted Aug. 4, 1988] the Comptroller General shall
submit to the Committee on Small Business of both the House and Senate, the
Committee on Labor and Human Resources, and the Committee on Education and
Labor a report containing a detailed and objective analysis of the effect of
this Act [29 USCS §§ 2101 et seq.] on employers (especially small- and
medium-sized businesses), the economy (international competitiveness), and
employees (in terms of levels and conditions of employment). The Comptroller
General shall assess both costs and benefits, including the effect on
productivity, competitiveness, unemployment rates and compensation, and worker
retraining and readjustment.