Fair Warning Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 5205 To amend the Worker Adjustment and Retraining Notification Act to support workers who are subject to an employment loss, and for other purposes. IN THE HOUSE OF REPRESENTATIVES NOVEMBER 20, 2019 Mr. RYAN (for himself and Mr. TRONE) introduced the following bill; which was referred to the Committee on Education and Labor A BILL To amend the Worker Adjustment and Retraining Notifica- tion Act to support workers who are subject to an em- ployment loss, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fair Warning Act of 4 2019’’. 5 SEC. 2. DEFINITIONS; PROVISION OF NOTICE OF SITE CLOS- 6 INGS AND MASS LAYOFFS. 7 (a) WARN ACT AMENDMENTS.—Sections 2 and 3 of 8 the Worker Adjustment and Retraining Notification Act 9 (29 U.S.C. 2101; 2102) are amended to read as follows: 10 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 2 •HR 5205 IH ‘‘SEC. 2. DEFINITIONS; EXCLUSIONS FROM DEFINITION OF 1 LOSS OF EMPLOYMENT. 2 ‘‘(a) DEFINITIONS.—As used in this Act: 3 ‘‘(1) AFFECTED EMPLOYEE.—The term ‘af- 4 fected employee’ means a full-time or part-time em- 5 ployee who may reasonably be expected to experience 6 an employment loss as a consequence of a proposed 7 site closing or mass layoff by the employee’s em- 8 ployer. 9 ‘‘(2) EMPLOYER.— 10 ‘‘(A) IN GENERAL.—The term ‘employer’ 11 means any business enterprise that— 12 ‘‘(i) employs 50 or more employees, 13 including part-time employees and includ- 14 ing employees of the nominal employer and 15 any entity that is the nominal employer’s 16 direct or indirect parent or is integrated 17 with the nominal employer; or 18 ‘‘(ii) has an annual payroll of at least 19 $2,000,000. 20 ‘‘(B) DEFINITIONS.—For the purposes of 21 this paragraph: 22 ‘‘(i) INTEGRATED.—The term ‘inte- 23 grated’, when used with respect to a busi- 24 ness enterprise, means an entity whose re- 25 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 3 •HR 5205 IH lationship with another business enterprise 1 include— 2 ‘‘(I) common ownership; 3 ‘‘(II) common directors or offi- 4 cers; 5 ‘‘(III) de facto exercise of con- 6 trol; 7 ‘‘(IV) unity of personnel policies 8 emanating from a common source; or 9 ‘‘(V) dependency of operations. 10 ‘‘(ii) PARENT.—The term ‘parent’ 11 means an entity, regardless of its financial 12 interest in the nominal employer, that par- 13 ticipates directly or indirectly in making 14 decisions that affect the employees of the 15 nominal employer or of multiple entities 16 controlled by 1 person for a common busi- 17 ness purpose. 18 ‘‘(iii) CONSIDERATION.—In deter- 19 mining whether an entity is integrated 20 with or a direct or indirect parent of a 21 business enterprise that is the nominal em- 22 ployer, substantial weight shall be given to 23 any decision-making responsibility the enti- 24 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 4 •HR 5205 IH ty had for the practice that gave rise to 1 the violation of this Act. 2 ‘‘(3) EMPLOYMENT LOSS.—Subject to sub- 3 section (b), the term ‘employment loss’ means— 4 ‘‘(A) an employment termination, other 5 than a discharge for cause, voluntary departure, 6 or retirement; 7 ‘‘(B) a layoff exceeding 3 months; or 8 ‘‘(C) a reduction in hours of work of more 9 than 50 percent during each month of any 3- 10 month period. 11 ‘‘(4) MASS LAYOFF.— 12 ‘‘(A) IN GENERAL.—The term ‘mass lay- 13 off’ means a reduction in force that results in 14 an employment loss during any 90-day period— 15 ‘‘(i) for 10 or more employees of an 16 employer at a single site of employment, as 17 calculated under subparagraph (B); or 18 ‘‘(ii) for 250 or more employees of an 19 employer, irrespective of employment site. 20 ‘‘(B) CALCULATION.—The number of em- 21 ployees at a single site who suffer an employ- 22 ment loss shall be calculated in a manner that 23 includes— 24 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 5 •HR 5205 IH ‘‘(i) all such employees who work at 1 the physical location of the site; and 2 ‘‘(ii) all such employees who work re- 3 motely and— 4 ‘‘(I) are assigned to or otherwise 5 associated with the site; 6 ‘‘(II) receive assignments or 7 training from the site; 8 ‘‘(III) report to a manager asso- 9 ciated with the site; or 10 ‘‘(IV) whose job loss was a fore- 11 seeable consequence of a reduction in 12 force at the site. 13 ‘‘(5) REPRESENTATIVE.—The term ‘representa- 14 tive’ means an exclusive representative of employees 15 within the meaning of section 8(f) or 9(a) of the Na- 16 tional Labor Relations Act (29 U.S.C. 158(f); 17 159(a)) or section 2 of the Railway Labor Act (45 18 U.S.C. 152). 19 ‘‘(6) SECRETARY.—The term ‘Secretary’ means 20 the Secretary of Labor. 21 ‘‘(7) SITE CLOSING.—The term ‘site closing’ 22 means the permanent or temporary shutdown of a 23 single site of employment, or one or more facilities 24 or operating units within a single site of employ- 25 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 6 •HR 5205 IH ment, that results in an employment loss at the sin- 1 gle site of employment during any 30-day period for 2 5 or more employees, calculated in the same manner 3 as described in paragraph (4)(B). 4 ‘‘(8) UNIT OF LOCAL GOVERNMENT.—The term 5 ‘unit of local government’ means any general pur- 6 pose political subdivision of a State which has the 7 power to levy taxes and spend funds, as well as gen- 8 eral corporate and police powers. 9 ‘‘(b) EXCLUSIONS FROM EMPLOYMENT LOSS DUE 10 TO A SITE CLOSING OR MASS LAYOFF.—An employee 11 shall not be considered to have experienced an employment 12 loss due to a site closing or mass layoff if the site closing 13 or mass layoff is the result of the relocation or consolida- 14 tion of part or all of the employer’s business and, prior 15 to the site closing or mass layoff— 16 ‘‘(1) the employer offers to transfer the em- 17 ployee to a different site of employment within a 18 reasonable commuting distance with no more than a 19 3-month break in employment; or 20 ‘‘(2) the employer offers to transfer the em- 21 ployee to any other site of employment regardless of 22 distance with no more than a 3-month break in em- 23 ployment, and the employee accepts within 30 days 24 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 7 •HR 5205 IH of the offer or of the site closing or mass layoff, 1 whichever is later. 2 ‘‘SEC. 3. NOTICE REQUIRED BEFORE SITE CLOSINGS AND 3 MASS LAYOFFS. 4 ‘‘(a) NOTICE TO EMPLOYEES, STATE DISLOCATED 5 WORKER UNITS, AND LOCAL GOVERNMENTS.—An em- 6 ployer shall not order a site closing or mass layoff until 7 90 calendar days after the date on which the employer 8 has served written notice of such an order to— 9 ‘‘(1)(A) each representative of the affected em- 10 ployees as of the time of the notice; or 11 ‘‘(B) each affected employee; 12 ‘‘(2) the Secretary and the Governor of the 13 State where the site closing or mass layoff is to 14 occur; and 15 ‘‘(3) the State or entity designated by the State 16 to carry out rapid response activities under section 17 134(a)(2)(A) of the Workforce Innovation and Op- 18 portunity Act (29 U.S.C. 3174(a)(2)(A)). 19 ‘‘(b) DUTIES UPON RECEIPT OF NOTICE.—A State 20 or designated entity that receives a notice under sub- 21 section (a)(3) shall— 22 ‘‘(1) make the information in the notice publicly 23 available within the jurisdiction of the local govern- 24 ment involved; 25 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 8 •HR 5205 IH ‘‘(2) transmit a copy of the notice to each af- 1 fected local area (as defined in section 3 of the 2 Workforce Innovation and Opportunity Act (29 3 U.S.C. 3102)), so that the information in the notice 4 can be distributed through activities under section 5 134(c)(2)(A)(iv)(I)(aa) of that Act (29 U.S.C. 6 3174(c)(2)(A)(iv)(I)(aa)); and 7 ‘‘(3) ensure that— 8 ‘‘(A) an appropriate labor-management 9 committee described in section 3(51)(C) of the 10 Workforce Innovation and Opportunity Act (29 11 U.S.C. 3102(51)(C)) has been established or is 12 established not later than 20 days after receipt 13 of the notice; and 14 ‘‘(B) an individual is designated, by not 15 later than 20 days after receipt of such notice, 16 to coordinate rapid response activities described 17 in section 134(a)(2)(A)(i) of such Act, in con- 18 sultation with the labor-management com- 19 mittee. 20 ‘‘(c) REDUCTION OF NOTIFICATION PERIOD.— 21 ‘‘(1) POTENTIAL NEW BUSINESS OR FINANC- 22 ING.—An employer may order the site closing of a 23 single site of employment before the conclusion of 24 the 90-day period described in subsection (a) if— 25 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 9 •HR 5205 IH ‘‘(A) as of the date that notice would have 1 been required the employer had been offered, on 2 acceptable terms, new business or financing in 3 an amount which, if obtained, would have en- 4 abled the employer to avoid the site closing; and 5 ‘‘(B) the employer can demonstrate that, 6 had notice been given, the notice would have 7 precluded the new business or financing. 8 ‘‘(2) UNFORESEEN CIRCUMSTANCES.— 9 ‘‘(A) NATURAL DISASTERS.—No notice 10 under this Act shall be required if the site clos- 11 ing or mass layoff is due to any form of natural 12 disaster, such as a flood, earthquake, or a 13 drought ravaging the farmlands of the United 14 States. 15 ‘‘(B) TERRORIST ATTACKS.—No notice 16 under this Act shall be required if the site clos- 17 ing or mass layoff is due directly to a terrorist 18 attack that affects the operation of the site. 19 ‘‘(3) PROVISION OF NOTICE.—An employer re- 20 lying on this subsection shall give as much notice as 21 is practicable and at that time shall give a brief 22 statement of the basis for reducing the notification 23 period. 24 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 10 •HR 5205 IH ‘‘(d) EXTENSION OF TEMPORARY LAYOFF.—A tem- 1 porary layoff of more than 3 months that, at its outset, 2 was announced to be a temporary layoff of 3 months or 3 less, shall be treated as an employment loss under this 4 Act unless— 5 ‘‘(1) a written notice, as required under sub- 6 section (a), is provided at the commencement of the 7 temporary layoff stating the date on which the em- 8 ployer expects to recall the employees to work, and 9 such date is less than 3 months after the date of the 10 layoff; and 11 ‘‘(2) notice is given to all parties described in 12 subsection (a) at the time it becomes reasonable to 13 contemplate that the temporary layoff will be ex- 14 tended beyond the 90-day period. 15 ‘‘(e) DETERMINATIONS WITH RESPECT TO EMPLOY- 16 MENT LOSS.— 17 ‘‘(1) MULTIPLE GROUPS.—For purposes of this 18 section, in determining whether a site closing or 19 mass layoff at a single site of employment has oc- 20 curred or will occur, employment losses for 2 or 21 more groups at the single site of employment, each 22 of which is less than the minimum number of em- 23 ployees specified in paragraph (4) or (7) of section 24 2(a) but which in the aggregate exceed that min- 25 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 11 •HR 5205 IH imum number, and which occur within any 90-day 1 period, shall be considered to be a site closing or 2 mass layoff unless the employer demonstrates that 3 the employment losses are the result of separate and 4 distinct actions and causes and are not an attempt 5 by the employer to evade the requirements of this 6 Act. 7 ‘‘(2) TREATMENT OF BUSINESS SALES.— 8 ‘‘(A) IN GENERAL.—In the case of a sale 9 of part or all of an employer’s business, the 10 seller shall be responsible for providing notice 11 for any site closing or mass layoff in accordance 12 with this section up to and including the effec- 13 tive date of the sale. After the effective date of 14 the sale of part or all of an employer’s business, 15 the purchaser shall be responsible for providing 16 notice for any site closing or mass layoff in ac- 17 cordance with this section. 18 ‘‘(B) TRANSFER OF EMPLOYEES.—In the 19 case of a sale of part or all of an employer’s 20 business, and notwithstanding any other provi- 21 sion of this Act, any person who is an employee 22 of the seller as of the effective date of the sale 23 shall be considered an employee of the pur- 24 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 12 •HR 5205 IH chaser immediately after the effective date of 1 the sale. 2 ‘‘(f) CONTENT OF NOTICES.—An employer who is re- 3 quired to provide notice as required under subsection (a) 4 shall include— 5 ‘‘(1) in each notice required under such sub- 6 section— 7 ‘‘(A) a statement of the number of affected 8 employees; 9 ‘‘(B) the reason for the site closing or 10 mass layoff; 11 ‘‘(C) whether the layoff is permanent or 12 temporary and, if temporary, the date on which 13 the employer expects to recall the affected em- 14 ployees to work; 15 ‘‘(D) the availability of employment at 16 other establishments owned by the employer; 17 ‘‘(E) a statement of each employee’s rights 18 with respect to wages and severance and em- 19 ployee benefits; and 20 ‘‘(F) a statement of the available employ- 21 ment and training services provided by the De- 22 partment of Labor; and 23 ‘‘(2) in each notice required under such sub- 24 section (except for paragraph (1)(B) of such sub- 25 VerDate Sep 11 2014 23:11 Nov 29, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H5205.IH H5205 kjohnson on DSK79L0C42 with BILLS 13 •HR 5205 IH section), the names, addresses, and occupations of 1 the affected employees. 2 ‘‘(g) INFORMATION REGARDING BENEFITS AND 3 SERVICES AVAILABLE TO EMPLOYEES.—Concurrent with 4 or immediately after providing the notice req [Text truncated for display. 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