ERISA Benefits Law Desk ReferenceERISA Benefits Tech, LLC

Part 26 · Chapter 2

The WARN Act and State Mini-WARN Laws

Law stated as of October 3, 2026 · Severance, WARN, and Workforce Restructuring

Scope and status

This chapter covers the federal Worker Adjustment and Retraining Notification Act (29 U.S.C. §§2101–2109; 20 C.F.R. Part 639) — coverage, the two triggering events, employment loss, the single site of employment question and its unresolved application to fully remote workers, notice content and delivery, the three exceptions, the sale-of-business and 90-day aggregation rules, and the liability and remedy structure — together with the state mini-WARN overlay and how WARN pay interacts with severance and releases. WARN is an employment-law statute, not an ERISA statute; the Firm's role here is the benefits-and-severance interface, and employment counsel should own the notice determination itself. Related questions are treated elsewhere: severance plan status and design in Severance Plan Status, Window Programs, and Design; §409A and taxation of WARN and severance payments in Severance under §409A and §457, and Severance Taxation; and the benefit-plan consequences of the layoff in Workforce Restructuring: Benefit Plan Consequences.

Sections

Part A is shown in full. The other sections are listed by title; their text is available to subscribers.

Part A — Coverage

A1.Who is a covered employer

Part 26, ch. 2, § A1

WARN applies to a business enterprise that employs either 100 or more employees, excluding part-time employees, or 100 or more employees who in the aggregate work at least 4,000 hours per week, exclusive of overtime. Statute: 29 U.S.C. §2101(a)(1); Final reg: 20 C.F.R. §639.3(a). A part-time employee is one 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. Statute: 29 U.S.C. §2101(a)(8). Workers on temporary layoff with a reasonable expectation of recall are counted, and employees who are themselves exempt from notice still count toward coverage. Final reg: 20 C.F.R. §639.3(a).

A2.Related entities

Part 26, ch. 2, § A2

Whether separate corporate entities are treated as a single employer is determined on a functional test drawn from the DOL regulation — common ownership, common directors and officers, de facto exercise of control, unity of personnel policies emanating from a common source, and dependency of operations. Final reg: 20 C.F.R. §639.3(a)(2).

Part B — The Two Triggering Events

  1. B1Plant closingSubscribers
  2. B2Mass layoffSubscribers
  3. B3Employment lossSubscribers
  4. B4Transfers that are not employment lossesSubscribers

Part C — Single Site of Employment (Including Remote Workers)

  1. C1The regulationSubscribers
  2. C2Fully remote employees — unsettled, and the most important open question in current WARN practiceSubscribers

Part D — Notice

  1. D1Timing and recipientsSubscribers
  2. D2Content and deliverySubscribers

Part E — The Three Exceptions

  1. E1Faltering company — plant closings onlySubscribers
  2. E2Unforeseeable business circumstancesSubscribers
  3. E3Natural disasterSubscribers
  4. E4What every exception still requiresSubscribers

Part F — Aggregation and Sale of a Business

  1. F1The 90-day aggregation ruleSubscribers
  2. F2Sale of a businessSubscribers

Part G — Liability and Remedies

  1. G1What the employer owes employeesSubscribers
  2. G2OffsetsSubscribers
  3. G3The civil penalty and enforcementSubscribers
  4. G4No injunction, and remedies are exclusiveSubscribers

Part H — State Mini-WARN Laws

  1. H1The overlay, and why it usually governsSubscribers
  2. H2The three that most often controlSubscribers
  3. H3Arizona has no mini-WARNSubscribers
  4. H4Pending federal change — a live watch itemSubscribers
  5. H5Recent enactments — Washington, Ohio, and NebraskaSubscribers

Part I — WARN, Severance, and Releases Together

  1. I1Whether severance offsets WARN liabilitySubscribers
  2. I2Pay in lieu of noticeSubscribers
  3. I3Releasing WARN claimsSubscribers

The first Part of each chapter is open to everyone. The remaining sections, with their authority and practice points, are available to subscribers and to clients of ERISA Benefits Law Group, PLLC whose engagement includes access.

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