Fair Warning Act of 2019

II 116TH CONGRESS 1ST SESSION S. 2938 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 SENATE OF THE UNITED STATES NOVEMBER 21, 2019 Mr. BROWN (for himself, Mr. SCHUMER, and Mrs. MURRAY) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 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 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 2 •S 2938 IS SEC. 2. DEFINITIONS; PROVISION OF NOTICE OF SITE CLOS- 1 INGS AND MASS LAYOFFS. 2 (a) WARN ACT AMENDMENTS.—Sections 2 and 3 of 3 the Worker Adjustment and Retraining Notification Act 4 (29 U.S.C. 2101; 2102) are amended to read as follows: 5 ‘‘SEC. 2. DEFINITIONS; EXCLUSIONS FROM DEFINITION OF 6 LOSS OF EMPLOYMENT. 7 ‘‘(a) DEFINITIONS.—As used in this Act: 8 ‘‘(1) AFFECTED EMPLOYEE.—The term ‘af- 9 fected employee’ means a full-time or part-time em- 10 ployee who may reasonably be expected to experience 11 an employment loss as a consequence of a proposed 12 site closing or mass layoff by the employee’s em- 13 ployer. 14 ‘‘(2) EMPLOYER.— 15 ‘‘(A) IN GENERAL.—The term ‘employer’ 16 means any business enterprise that— 17 ‘‘(i) employs 50 or more employees, 18 including part-time employees and includ- 19 ing employees of the nominal employer and 20 any entity that is the nominal employer’s 21 direct or indirect parent or is integrated 22 with the nominal employer; or 23 ‘‘(ii) has an annual payroll of at least 24 $2,000,000. 25 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 3 •S 2938 IS ‘‘(B) DEFINITIONS.—For the purposes of 1 this paragraph: 2 ‘‘(i) INTEGRATED.—The term ‘inte- 3 grated’, when used with respect to a busi- 4 ness enterprise, means an entity whose re- 5 lationship with another business enterprise 6 include— 7 ‘‘(I) common ownership; 8 ‘‘(II) common directors or offi- 9 cers; 10 ‘‘(III) de facto exercise of con- 11 trol; 12 ‘‘(IV) unity of personnel policies 13 emanating from a common source; or 14 ‘‘(V) dependency of operations. 15 ‘‘(ii) PARENT.—The term ‘parent’ 16 means an entity, regardless of its financial 17 interest in the nominal employer, that par- 18 ticipates directly or indirectly in making 19 decisions that affect the employees of the 20 nominal employer or of multiple entities 21 controlled by 1 person for a common busi- 22 ness purpose. 23 ‘‘(iii) CONSIDERATION.—In deter- 24 mining whether an entity is integrated 25 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 4 •S 2938 IS with or a direct or indirect parent of a 1 business enterprise that is the nominal em- 2 ployer, substantial weight shall be given to 3 any decision-making responsibility the enti- 4 ty had for the practice that gave rise to 5 the violation of this Act. 6 ‘‘(3) EMPLOYMENT LOSS.—Subject to sub- 7 section (b), the term ‘employment loss’ means— 8 ‘‘(A) an employment termination, other 9 than a discharge for cause, voluntary departure, 10 or retirement; 11 ‘‘(B) a layoff exceeding 3 months; or 12 ‘‘(C) a reduction in hours of work of more 13 than 50 percent during each month of any 3- 14 month period. 15 ‘‘(4) MASS LAYOFF.— 16 ‘‘(A) IN GENERAL.—The term ‘mass lay- 17 off’ means a reduction in force that results in 18 an employment loss during any 90-day period— 19 ‘‘(i) for 10 or more employees of an 20 employer at a single site of employment, as 21 calculated under subparagraph (B); or 22 ‘‘(ii) for 250 or more employees of an 23 employer, irrespective of employment site. 24 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 5 •S 2938 IS ‘‘(B) CALCULATION.—The number of em- 1 ployees at a single site who suffer an employ- 2 ment loss shall be calculated in a manner that 3 includes— 4 ‘‘(i) all such employees who work at 5 the physical location of the site; and 6 ‘‘(ii) all such employees who work re- 7 motely and— 8 ‘‘(I) are assigned to or otherwise 9 associated with the site; 10 ‘‘(II) receive assignments or 11 training from the site; 12 ‘‘(III) report to a manager asso- 13 ciated with the site; or 14 ‘‘(IV) whose job loss was a fore- 15 seeable consequence of a reduction in 16 force at the site. 17 ‘‘(5) REPRESENTATIVE.—The term ‘representa- 18 tive’ means an exclusive representative of employees 19 within the meaning of section 8(f) or 9(a) of the Na- 20 tional Labor Relations Act (29 U.S.C. 158(f); 21 159(a)) or section 2 of the Railway Labor Act (45 22 U.S.C. 152). 23 ‘‘(6) SECRETARY.—The term ‘Secretary’ means 24 the Secretary of Labor. 25 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 6 •S 2938 IS ‘‘(7) SITE CLOSING.—The term ‘site closing’ 1 means the permanent or temporary shutdown of a 2 single site of employment, or one or more facilities 3 or operating units within a single site of employ- 4 ment, that results in an employment loss at the sin- 5 gle site of employment during any 30-day period for 6 5 or more employees, calculated in the same manner 7 as described in paragraph (4)(B). 8 ‘‘(8) UNIT OF LOCAL GOVERNMENT.—The term 9 ‘unit of local government’ means any general pur- 10 pose political subdivision of a State which has the 11 power to levy taxes and spend funds, as well as gen- 12 eral corporate and police powers. 13 ‘‘(b) EXCLUSIONS FROM EMPLOYMENT LOSS DUE 14 TO A SITE CLOSING OR MASS LAYOFF.—An employee 15 shall not be considered to have experienced an employment 16 loss due to a site closing or mass layoff if the site closing 17 or mass layoff is the result of the relocation or consolida- 18 tion of part or all of the employer’s business and, prior 19 to the site closing or mass layoff— 20 ‘‘(1) the employer offers to transfer the em- 21 ployee to a different site of employment within a 22 reasonable commuting distance with no more than a 23 3-month break in employment; or 24 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 7 •S 2938 IS ‘‘(2) the employer offers to transfer the em- 1 ployee to any other site of employment regardless of 2 distance with no more than a 3-month break in em- 3 ployment, and the employee accepts within 30 days 4 of the offer or of the site closing or mass layoff, 5 whichever is later. 6 ‘‘SEC. 3. NOTICE REQUIRED BEFORE SITE CLOSINGS AND 7 MASS LAYOFFS. 8 ‘‘(a) NOTICE TO EMPLOYEES, STATE DISLOCATED 9 WORKER UNITS, AND LOCAL GOVERNMENTS.—An em- 10 ployer shall not order a site closing or mass layoff until 11 90 calendar days after the date on which the employer 12 has served written notice of such an order to— 13 ‘‘(1)(A) each representative of the affected em- 14 ployees as of the time of the notice; or 15 ‘‘(B) each affected employee; 16 ‘‘(2) the Secretary and the Governor of the 17 State where the site closing or mass layoff is to 18 occur; and 19 ‘‘(3) the State or entity designated by the State 20 to carry out rapid response activities under section 21 134(a)(2)(A) of the Workforce Innovation and Op- 22 portunity Act (29 U.S.C. 3174(a)(2)(A)). 23 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 8 •S 2938 IS ‘‘(b) DUTIES UPON RECEIPT OF NOTICE.—A State 1 or designated entity that receives a notice under sub- 2 section (a)(3) shall— 3 ‘‘(1) make the information in the notice publicly 4 available within the jurisdiction of the local govern- 5 ment involved; 6 ‘‘(2) transmit a copy of the notice to each af- 7 fected local area (as defined in section 3 of the 8 Workforce Innovation and Opportunity Act (29 9 U.S.C. 3102)), so that the information in the notice 10 can be distributed through activities under section 11 134(c)(2)(A)(iv)(I)(aa) of that Act (29 U.S.C. 12 3174(c)(2)(A)(iv)(I)(aa)); and 13 ‘‘(3) ensure that— 14 ‘‘(A) an appropriate labor-management 15 committee described in section 3(51)(C) of the 16 Workforce Innovation and Opportunity Act (29 17 U.S.C. 3102(51)(C)) has been established or is 18 established not later than 20 days after receipt 19 of the notice; and 20 ‘‘(B) an individual is designated, by not 21 later than 20 days after receipt of such notice, 22 to coordinate rapid response activities described 23 in section 134(a)(2)(A)(i) of such Act, in con- 24 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 9 •S 2938 IS sultation with the labor-management com- 1 mittee. 2 ‘‘(c) REDUCTION OF NOTIFICATION PERIOD.— 3 ‘‘(1) POTENTIAL NEW BUSINESS OR FINANC- 4 ING.—An employer may order the site closing of a 5 single site of employment before the conclusion of 6 the 90-day period described in subsection (a) if— 7 ‘‘(A) as of the date that notice would have 8 been required the employer had been offered, on 9 acceptable terms, new business or financing in 10 an amount which, if obtained, would have en- 11 abled the employer to avoid the site closing; and 12 ‘‘(B) the employer can demonstrate that, 13 had notice been given, the notice would have 14 precluded the new business or financing. 15 ‘‘(2) UNFORESEEN CIRCUMSTANCES.— 16 ‘‘(A) NATURAL DISASTERS.—No notice 17 under this Act shall be required if the site clos- 18 ing or mass layoff is due to any form of natural 19 disaster, such as a flood, earthquake, or a 20 drought ravaging the farmlands of the United 21 States. 22 ‘‘(B) TERRORIST ATTACKS.—No notice 23 under this Act shall be required if the site clos- 24 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 10 •S 2938 IS ing or mass layoff is due directly to a terrorist 1 attack that affects the operation of the site. 2 ‘‘(3) PROVISION OF NOTICE.—An employer re- 3 lying on this subsection shall give as much notice as 4 is practicable and at that time shall give a brief 5 statement of the basis for reducing the notification 6 period. 7 ‘‘(d) EXTENSION OF TEMPORARY LAYOFF.—A tem- 8 porary layoff of more than 3 months that, at its outset, 9 was announced to be a temporary layoff of 3 months or 10 less, shall be treated as an employment loss under this 11 Act unless— 12 ‘‘(1) a written notice, as required under sub- 13 section (a), is provided at the commencement of the 14 temporary layoff stating the date on which the em- 15 ployer expects to recall the employees to work, and 16 such date is less than 3 months after the date of the 17 layoff; and 18 ‘‘(2) notice is given to all parties described in 19 subsection (a) at the time it becomes reasonable to 20 contemplate that the temporary layoff will be ex- 21 tended beyond the 90-day period. 22 ‘‘(e) DETERMINATIONS WITH RESPECT TO EMPLOY- 23 MENT LOSS.— 24 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 11 •S 2938 IS ‘‘(1) MULTIPLE GROUPS.—For purposes of this 1 section, in determining whether a site closing or 2 mass layoff at a single site of employment has oc- 3 curred or will occur, employment losses for 2 or 4 more groups at the single site of employment, each 5 of which is less than the minimum number of em- 6 ployees specified in paragraph (4) or (7) of section 7 2(a) but which in the aggregate exceed that min- 8 imum number, and which occur within any 90-day 9 period, shall be considered to be a site closing or 10 mass layoff unless the employer demonstrates that 11 the employment losses are the result of separate and 12 distinct actions and causes and are not an attempt 13 by the employer to evade the requirements of this 14 Act. 15 ‘‘(2) TREATMENT OF BUSINESS SALES.— 16 ‘‘(A) IN GENERAL.—In the case of a sale 17 of part or all of an employer’s business, the 18 seller shall be responsible for providing notice 19 for any site closing or mass layoff in accordance 20 with this section up to and including the effec- 21 tive date of the sale. After the effective date of 22 the sale of part or all of an employer’s business, 23 the purchaser shall be responsible for providing 24 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 12 •S 2938 IS notice for any site closing or mass layoff in ac- 1 cordance with this section. 2 ‘‘(B) TRANSFER OF EMPLOYEES.—In the 3 case of a sale of part or all of an employer’s 4 business, and notwithstanding any other provi- 5 sion of this Act, any person who is an employee 6 of the seller as of the effective date of the sale 7 shall be considered an employee of the pur- 8 chaser immediately after the effective date of 9 the sale. 10 ‘‘(f) CONTENT OF NOTICES.—An employer who is re- 11 quired to provide notice as required under subsection (a) 12 shall include— 13 ‘‘(1) in each notice required under such sub- 14 section— 15 ‘‘(A) a statement of the number of affected 16 employees; 17 ‘‘(B) the reason for the site closing or 18 mass layoff; 19 ‘‘(C) whether the layoff is permanent or 20 temporary and, if temporary, the date on which 21 the employer expects to recall the affected em- 22 ployees to work; 23 ‘‘(D) the availability of employment at 24 other establishments owned by the employer; 25 VerDate Sep 11 2014 01:39 Dec 03, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2938.IS S2938 kjohnson on DSK79L0C42 with BILLS 13 •S 2938 IS ‘‘(E) a statement of each employee’s rights 1 with respect to wages and severance and em- 2 ployee benefits; and 3 ‘‘(F) a statement of the available employ- 4 ment and training services provided by the De- 5 partment of Labor; and 6 ‘‘(2) in each notice required under such sub- 7 section (except for paragraph (1)(B) of such sub- 8 section), the names, addresses, and occupations of 9 the affected employees. 10 ‘‘(g) INFORMATION REGARDING BENEFITS AND 11 SERVICES AVAILABLE TO EMPLOYEES.—Concurrent with 12 or i [Text truncated for display. 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