How Does the WARN Act Apply to Remote Employees?

HR / Workplace

By:  Kim Adamson

As remote work becomes a permanent fixture in most organizations, employers must understand how various labor laws, including the Worker Adjustment and Retraining Notification (WARN) Act, apply. This act raises complex questions when plant closings or mass layoffs affect remote employees. Below is a comprehensive overview of the federal WARN Act, penalties for non-compliance, how it applies to remote employees, and best practices employers should consider, empowering you with the knowledge to navigate these issues effectively.

What Is the Federal WARN Act?

The federal WARN Act applies when a layoff or plant closure affects a certain number of employees at a single site of employment. The WARN Act is intended to give employees and families time to prepare for job and income loss, search for another job, and obtain any skills training or retraining programs needed. The goal is also to inform local governments to allow time to respond to economic impacts in the region.

The federal WARN Act requires employers with 100 or more full-time employees to provide 60 days’ advance notice before:

  • A plant or office closing affecting 50+ employees at a single site
  • A mass layoff involving either:
  • 500+ employees, or
  • 50–499 employees if they represent at least 33% of the workforce at a single site
  • The federal WARN Act does not apply to part-time employees (those working less than 20 hours per week or employed for less than 6 months) when determining if the WARN Act is triggered.  However, part-time employees are still entitled to receive the required notice. In addition, some states’ Mini-Warn Acts may differ in the definitions of part-time employees and whether they should be counted in the threshold for determining applicability.
  • Exceptions may apply for employers to give less than 60 days’ notice for specific situations.  Employers must seek legal counsel to determine any of the following exceptions to WARN Act notice requirements:
  • Unforeseeable business circumstances (e.g., sudden loss of a major contract)
  • Faltering company (actively seeking capital to avoid closure)
  • Natural disasters (e.g., a tornado destroys the facility). Even in these cases, employers must give as much notice as possible and explain the reason for the shortened notice.

Penalties for Non-Compliance

Employees, unions, or government entities can file individual or class action lawsuits against an employer for non-compliance.  Enforcement of the federal WARN Act is through federal district courts.  If a state has a Mini-Warn Act, employees may file a lawsuit in the state court to enforce their rights under that law.  If the employer is in violation, the courts may:

  • Award civil penalties up to $500 per day for failing to notify the local government
  • Award employees damages for up to 60 days of back pay and benefits, as well as attorney’s fees if they prevail in a lawsuit.

Employers may avoid penalties by paying affected employees within 3 weeks of the layoff or plant closure.

How Does the Federal WARN Act Apply to Remote Employees?

The WARN Act does not explicitly define how remote employees should be counted when determining WARN thresholds.  The Department of Labor and recent court decisions have interpreted the law to include remote employees in the count under certain conditions.  For example, if remote employees are assigned to a site, such as the organization’s headquarters, they may be included in the count, even if they work from home.  The key challenge is determining the “single site of employment” for remote employees.  Remote employees may be considered part of a “single site of employment” if they:

  • Are assigned to a physical location (e.g., headquarters or regional office)
  • Receive work assignments from a specific site
  • Report to managers based at a particular location

This interpretation aligns with the Department of Labor’s regulation for “outstationed” employees (e.g., salespeople or drivers), whose site of employment is defined by their home base, reporting location, or assignment origin. Some remote employees with no ties to a physical site may not count toward WARN thresholds, but the courts are reviewing this issue.

Legal Cases

Recent court cases have affirmed that remote employees can trigger WARN Act obligations:

  • Hoover v. Drivetrain LLC (2022), U.S. Bankruptcy Court, District of Delaware. The issue was related to whether remote employees could be considered part of a “single site of employment” for WARN Act purposes.  The Court concluded that remote employees who report to or receive assignments from a central location are covered under the WARN Act as “outstationed” workers and that those remote workers may trigger WARN obligations if they are organizationally tied to a physical site.
  • Piron v. General Dynamics Information Technology, Inc. (2022), Eastern District of Virginia. The case was related to class certification for remote employees laid off without a WARN notice.  The Court allowed the class to proceed, stating that remote workers could be considered part of a single site of employment since the employees worked remotely but received assignments from and reported to a Virginia office.

State Mini-WARN Acts

Some states (such as California, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Hampshire, New Jersey, New York, Tennessee, Vermont, and Wisconsin) have enacted Mini-WARN Acts that are typically more stringent than the federal WARN Act by extending the notice period, employer size thresholds, and definition of part-time employees.  Remote employees in these states may be protected under both federal and state laws.

Guidelines for Employer Best Practices

Remote work does not exempt employers from WARN Act responsibilities. If remote employees are tied to a physical site, they may count toward layoff or plant closing thresholds. As courts continue to recognize these connections, organizations must adapt their compliance strategies to reflect these workforce changes.  To stay compliant and avoid costly penalties, employers can follow the guidelines below:

  1. Determine Applicability
  • Confirm that the organization has 100+ full-time employees
  • Assess whether the layoff or plant closure meets WARN thresholds for:
    • 50+ employees at a single site
    • 500+ employees total, or 50–499 if they make up 33% of the workforce
  1. Identify “Single Site of Employment
  • For each remote employee, clearly document worksite assignments and reporting relationships in offer letters and HR records, and determine:
    • Their assigned home base
    • The location from which they receive work assignments
    • The location to which they report
  1. Determine if any state Mini-WARN Act applies:
  • Review state-specific thresholds and notice periods
  • Determine if remote employees should be counted under state law
  1. Avoid Discriminatory Impact
  • Ensure remote employees are not disproportionately affected
  • Review layoff criteria for compliance with ADA and Title VII
  • Avoid targeting remote employees who work from home due to disability or pregnancy accommodations
  1. Consult Legal Counsel
  • Review all layoff plans with employment law counsel
  • Document rationale for site assignments and WARN calculations
  • Prepare for potential litigation or audits
  1. Prepare and Deliver Notices
  • Draft written notice including:
  • Expected date of layoff or closure
  • Reason for the action
  • Contact info for the organization’s representative
  • Send notice using a reliable delivery method (email is acceptable if personalized and trackable) to the following:
    • Affected employees
    • State dislocated worker unit
    • Local government officials

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