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Employers: What You Should Know About Delaware’s WARN Act

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July 24, 2018
By: James H. McMackin, III and Allyson B. DiRocco
Employment Law Alert

The Delaware Legislature recently enacted the Delaware Workplace Adjustment and Retraining Notification Act (the WARN Act). 

Beginning January 9, 2019, Delaware employers will be required to provide at least 60 days advance notice of mass layoffs, plant closings, or relocations. This statute applies to all employers with 100 or more full time employees who work at least 2000 hours per week in the aggregate. This statute does not apply to the federal or state government, any political subdivisions, including units of local government, school districts, or charter schools. 

According to this statute, an employer may not order a mass layoff, plant closing, or relocation if it will cause employment loss, unless the employer provides 60 days’ written notice of the order to:

  1. affected employees and their representatives,
  2. the Delaware Department of Labor Division of Employment Training, WARN Act Administrator, and
  3. the Delaware Workforce Development Board.

The employer’s notice must contain the elements required by the federal WARN Act and shall include the contact information of each planned dislocated worker, general information concerning any pay outs, severance packages, job relocation opportunities, retirement options, and whether the employer is self-insured for workers’ compensation insurance. 

Employers should be aware of this new statute and keep it in mind when a mass layoff, plant closing, or relocation is on the horizon. There are certain exceptions regarding whether particular types of events are considered temporary shut downs, or whether an event will cause employment loss. Employers should consult with an attorney to discuss whether any such exceptions may apply.

The penalties for an employer’s failure to give notice include providing back pay and the value of the cost of any benefits to the employees, monetary civil penalties of $1000 per day of the violation or $100 per day of the violation per dislocated worker. The statute also provides for a civil cause of action for employees, which includes a fee-shifting provision whereby the employer is responsible to pay for the employee’s reasonable attorney’s fees in the event the employee prevails in the action.

If you have questions or would like additional information, please contact Jim McMackin (jmcmackin@morrisjames.com; 302.888.5849) or Allyson DiRocco (adirocco@morrisjames.com; 302.888.5210).

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