(a) Employer. (1) The term ``employer'' means any business
enterprise that employs--
(i) 100 or more employees, excluding part-time employees; or
(ii) 100 or more employees, including part-time employees, who in
the aggregate work at least 4,000 hours per week, exclusive of hours of
overtime.
Workers on temporary layoff or on leave who have a reasonable
expectation of recall are counted as employees. An employee has a
``reasonable expectation of recall'' when he/she understands, through
notification or through industry practice, that his/her employment with
the employer has been temporarily interrupted and that he/she will be
recalled to the same or to a similar job. The term ``employer'' includes
non-profit organizations of the requisite size. Regular Federal, State,
local and federally recognized Indian tribal governments are not
covered. However, the term ``employer'' includes public and quasi-public
entities which engage in business (i.e., take part in a commercial or
industrial enterprise, supply a service or good on a
mercantile basis, or provide independent management of public assets,
raising revenue and making desired investments), and which are
separately organized from the regular government, which have their own
governing bodies and which have independent authority to manage their
personnel and assets.
(2) Under existing legal rules, independent contractors and
subsidiaries which are wholly or partially owned by a parent company are
treated as separate employers or as a part of the parent or contracting
company depending upon the degree of their independence from the parent.
Some of the factors to be considered in making this determination are
(i) common ownership, (ii) common directors and/or officers, (iii) de
facto exercise of control, (iv) unity of personnel policies emanating
from a common source, and (v) the dependency of operations.
(3) Workers, other than part-time workers, who are exempt from
notice under section 4 of WARN are nonetheless counted as employees for
purposes of determining coverage as an employer.
(4) An employer may have one or more sites of employment under
common ownership or control. An example would be a major auto maker
which has dozens of automobile plants throughout the country. Each plant
would be considered a site of employment, but there is only one
``employer'', the auto maker.
(b) Plant closing. 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'' during any 30-day period
at the single site of employment for 50 or more employees, excluding any
part-time employees. An employment action that results in the effective
cessation of production or the work performed by a unit, even if a few
employees remain, is a shutdown. A ``temporary shutdown'' triggers the
notice requirement only if there are a sufficient number of
terminations, layoffs exceeding 6 months, or reductions in hours of work
as specified under the definition of ``employment loss.''
(c) Mass layoff. (1) The term ``mass layoff'' means a reduction in
force which first, is not the result of a plant closing, and second,
results in an employment loss at the single site of employment during
any 30-day period for:
(i) At least 33 percent of the active employees, excluding part-time
employees, and
(ii) At least 50 employees, excluding part-time employees.
Where 500 or more employees (excluding part-time employees) are
affected, the 33% requirement does not apply, and notice is required if
the other criteria are met. Plant closings involve employment loss which
results from the shutdown of one or more distinct units within a single
site or the entire site. A mass layoff involves employment loss,
regardless of whether one or more units are shut down at the site.
(2) Workers, other than part-time workers, who are exempt from
notice under section 4 of WARN are nonetheless counted as employees for
purposes of determining coverage as a plant closing or mass layoff. For
example, if an employer closes a temporary project on which 10 permanent
and 40 temporary workers are employed, a covered plant closing has
occurred although only 10 workers are entitled to notice.
(d) Representative. 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 or section 2 of the Railway Labor
Act.
(e) Affected employees. 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. This includes individually identifiable employees who
will likely lose their jobs because of bumping rights or other factors,
to the extent that such individual workers reasonably can be identified
at the time notice is required to be given. The term ``affected
employees'' includes managerial and supervisory employees, but does not
include business
partners. Consultant or contract employees who have a separate
employment relationship with another employer and are paid by that other
employer, or who are self-employed, are not ``affected employees'' of
the business to which they are assigned. In addition, for purposes of
determining whether coverage thresholds are met, either incumbent
workers in jobs being eliminated or, if known 60 days in advance, the
actual employees who suffer an employment loss may be counted.
(f) Employment loss. (1) The term ``employment loss'' means (i) an
employment termination, other than a discharge for cause, voluntary
departure, or retirement, (ii) a layoff exceeding 6 months, or (iii) a
reduction in hours of work of individual employees of more than 50%
during each month of any 6-month period.
(2) Where a termination or a layoff (see paragraphs (f)(1)(i) and
(ii) of this section) is involved, an employment loss does not occur
when an employee is reassigned or transferred to employer-sponsored
programs, such as retraining or job search activities, as long as the
reassignment does not constitute a constructive discharge or other
involuntary termination.
(3) An employee is not 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--
(i) 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
(ii) 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.
(4) A ``relocation or consolidation'' of part or all of an
employer's business, for purposes of paragraph Sec. 639.3(h)(4), means
that some definable business, whether customer orders, product lines, or
operations, is transferred to a different site of employment and that
transfer results in a plant closing or mass layoff.
(g) Unit of local government. 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 and which also has general
corporate and police powers. When a covered employment site is located
in more than one unit of local government, the employer must give notice
to the unit to which it determines it directly paid the highest taxes
for the year preceding the year for which the determination is made. All
local taxes directly paid to the local government should be aggregated
for this purpose.
(h) Part-time employee. 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, including workers who work full-time.
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.
(i) Single site of employment. (1) A single site of employment can
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.
(2) There may be several single sites of employment within a single
building, such as an office building, if separate employers conduct
activities within such a 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.
(3) Separate buildings or areas which are not directly connected or
in immediate proximity may be considered a single site of employment if
they are in reasonable geographic proximity, used for the same purpose,
and share the same staff and equipment. An example is an employer who
manages a number
of warehouses in an area but who regularly shifts or rotates the same
employees from one building to another.
(4) 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.
(5) 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.
(6) For workers whose primary duties require travel from point to
point, who are outstationed, or whose primary duties involve work
outside any of the employer's regular employment sites (e.g., railroad
workers, bus drivers, salespersons), the single site of employment to
which they are assigned as their home base, from which their work is
assigned, or to which they report will be the single site in which they
are covered for WARN purposes.
(7) Foreign sites of employment are not covered under WARN. U.S.
workers at such sites are counted to determine whether an employer is
covered as an employer under Sec. 639.3(a).
(8) The term ``single site of employment'' may also apply to truly
unusual organizational situations where the above criteria do not
reasonably apply. The application of this definition with the intent to
evade the purpose of the Act to provide notice is not acceptable.
(j) Facility or operating unit. The term ``facility'' refers to a
building or buildings. 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.
(k) State dislocated worker unit. The term ``State dislocated worker
unit'' means a unit designated or created in each State by the Governor
under title III of the Job Training Partnership Act, as amended by
EDWAA.
(l) State. For the purpose of WARN, the term ``State'' includes the
50 States, the District of Columbia, the Commonwealth of Puerto Rico,
and the U.S. Virgin Islands.
