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WARN Advisor Glossary

Bumping Rights
Business
Constructive Discharge
Debtor in Possession
Economic Striker
Employment Loss
Facility
Faltering Company
Full-Time Employee
Mass Layoff
Natural Disaster
Notice
Operating Unit
Part-time Employee
Plant Closing
Reasonable Commuting Distance
Single Site of Employment
Temporary Project or Facility
Unforeseeable Business Circumstances


Bumping Rights
In a seniority system, the rights of workers with greater seniority whose jobs are abolished to replace (bump) workers with less seniority so that the worker who ultimately loses his/her job is not the worker whose job was abolished.

Business
The term "business" generally encompasses private for-profit and nonprofit organizations. A "business" may also be a public and quasi-pubic entity which operates independently of a general state or local government in a commercial context including an entity wholly or partially owned by the government that operates in what is generally viewed as a "commercial" area of activity (e.g., rail passenger service, alcoholic beverage sales, generation and distribution of electric power). State and local governments are not considered to be “business” for WARN purposes.

Constructive Discharge
In general, the term "constructive discharge" is when a worker’s resignation or retirement may be found not to be voluntary because the employer has created a hostile or intolerable work environment or has applied other forms of pressure or coercion which forced the employee to quit or resign. This often arises when an employer makes significant and severe changes in the terms and conditions of a worker's employment. What constitutes a constructive discharge is usually defined in state law and varies from state to state.

Debtor in Possession
When a company goes into bankruptcy and it seeks to continue in business and restructure its operations so it can emerge from bankruptcy as a going concern, ordinarily, its existing management remains in charge and is called a debtor in possession.

Economic Striker
If the object of a strike is to obtain from the employer an economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers.

Employment Loss
The term "employment loss" means: (1) an employment termination, other than a discharge for cause or a voluntary quit or retirement; (2) a layoff of more than 6 months; or (3) a reduction of hours of work for each employee of more than 50% for each month of a 6 month period.

Facility
A facility refers to a separate building or buildings.

Faltering Company
The "faltering company" exception applies when, prior to a plant closing or mass layoff, a company is actively seeking capital or business and reasonably in good faith believes that advance notice would prevent it from obtaining such capital or business, and this new capital or business would allow the company to avoid or postpone a shutdown for a reasonable period.

Full-Time Employee
The term "full-time employee" means an employee who is not a part-time employee, that is, either an employee who, on average, works 20 hours or more each week and who has worked for the employer for 6 months or more.

Mass Layoff
The term "mass layoff" means a reduction in force that:

  1. Is not the result of a plant closing; and
  2. Results in an employment loss at the single site of employment during any 30-day period for:
    1. At least 50-499 employees (excluding any part-time employees) if they represent 33 percent of the total active workforce; or
    2. At least 500 employees (excluding any part-time employees). In this case, the 33 percent rule does not apply.

Natural Disaster
The term "natural disaster" means when a plant closing or mass layoff is the direct result of a natural disaster such as a flood, earthquake, drought, storm, tidal wave, or similar effects of nature.

Notice
The term "notice" is a written document about a potential mass layoff or plant closing that is given to the affected employees or their union representative, the State Dislocated Worker Unit and the chief local elected official 60 calendar days in advance of the action.

Operating Unit
The term "operating unit" refers to an organizationally or operationally distinct product, operation, or specific work function within or across facilities at the single site. Whether a specific unit within an employer’s organization depends on such factors as collective bargaining agreements, the employer’s organizational structure, and industry understandings about what constitutes separate work functions.

Part-time Employee
The term "part-time employee" means a person who is employed for an average of less than 20 hours per week or a person who has been employed for less than 6 of the 12 months before the notice date. This term may include workers who would traditionally be understood as "seasonal" employees. The period to be used for calculating whether a worker has worked an average of fewer than 20 hours per week is the shorter of the actual time the worker has been employed or the most recent 90 days.

Plant Closing
The term "plant closing" means the permanent or temporary closure 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 within any 30-day period of at least 50 employees, excluding part-time employees.

Reasonable Commuting Distance
The term "reasonable commuting distance" is a flexible term that will vary with local conditions. The factors to be considered in determining what is a reasonable commuting distance include: the accessibility of the place of employment, the quality of the roads, customarily available transportation and usual or customary travel times. The commuting distance is measured from the worker’s home.

Single Site of Employment
The term "single site" of employment may refer to either:

  • A single location or a group of contiguous locations. Groups of structures which form a campus or industrial park, or separate facilities across the street from one another may be considered a single site of employment;
  • Several single sites of employment within a single building if separate employers conduct activities within the building. For example, an office building housing 50 different businesses will contain 50 single sites of employment. The offices of each employer will be its single site of employment;
  • Separate buildings or areas that are not directly connected but are in close proximity and which share staff and equipment. An example is an employer which manages a number of warehouses in an area and which regularly shifts or rotates the same employees from one building to another;
  • Non-contiguous sites in the same geographic area which do not share the same staff or operational purpose should not be considered a single site. For example, assembly plants which are located on opposite sides of a town and which are managed by a single employer are separate sites if they employ different workers;
  • Contiguous buildings owned by the same employer which have separate management, produce different products, and have separate workforces are considered separate single sites of employment; or
  • Workers who primarily travel, who are outstationed or whose duties involve work outside the employer’s primary work sites are considered to be assigned to the single site of employment to which they are assigned in the employer’s organizational structure, the home base from which work is assigned, or the home base to which workers report.

Temporary Project or Facility
A temporary project or facility is a project or facility of limited duration at the end of which the employee’s relationship with the employer ends. The employer must clearly make the worker aware that he/she has been hired on a temporary basis for the duration of the project or facility. This kind of employment arrangement is common in the construction and other similar industries. An employer which hires workers to work on temporary projects or facilities may also have permanent employees whose jobs do not end when the project ends or the facility closes. If at the end of a project or the closing of a facility, an employer lays off enough of these permanent workers to trigger WARN, the employer must give these permanent workers notice. The employer is not required to give notice to its temporary workers.

Unforeseeable Business Circumstances
The term "unforeseeable business circumstances" means that the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required (i.e., a business circumstance that is caused by some sudden, dramatic, and unexpected action or conditions outside the employer's control).

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