mad this is a case of first impression out of the federal warn act in the circuit and it's for the court to decide whether an employee or employees who receive sixty days notice of a mass layoff under the act they're placed on a paid leave of absence continue to receive their full pay and benefits but are not required to perform any job duties during those sixty days whether they suffer an employment loss on the date they receive the notice any no they didn't and there is a group in july and the group in july was was certainly under the five hundred number which is the threshold and and the issue of whether or not the july plaintiffs were the plaintiffs in this case and the folks who received notice in september can be aggregated into the ninety day aggregation rule is not is not an issue that's before the court we this is a case that has been stipulated on on a single issue whether or not there was an employment loss for the city the group of two hundred ninety four people who lost their jobs we submit november and it already problem but whether you can stipulate in effect of the court's jurisdiction here  don't believe there is your honor that this is a strange procedural background where the parties decided to resolve the case class action lawsuit and submit to the court's jurisdiction that one sole question of whether or not there was this employment loss of this group that received notice in september i'd understand that it has to legally that's something you can do but was there were only fifty people clearly right that hey we'd like to have the court decide this issue and we couldn't do in that case but for purposes we concede at the lower court for purposes of this case that we that if there is an aggregation there would be at least five hundred people whether it's true or not well and there was a real question of fact of whether or not it was true and that's why the parties decided to settle there were a bunch of temporary employees ok we'll go on to the merits part we'll keep that in your honor so we were on stipulated facts in a stipulated issue and this is subject to do novo review so this is the first brand new look at this case and of course the warrant act requires employers to provide sixty days notice of terminations of mass layoffs of permanent plant shutdowns and  defines the employment loss as an employment terminations other than a discharge for cause or voluntary departure or retirement but the act doesn't define the term employment terminations the department of labor has explained in it regulations and was adopted by this circuit in the wilts case that the term terminations to have a commonsense meaning of the permanent cessation of the employment relationship and vanderbilt we submit that's a very strong burden berge drunk standard that that it and here we have a group of employees who received there were notices on november seventeenth two thousand and thirteen informing them that their jobs would be eliminated on nov sixteenth twenty thirteen similar notices were sent to the tennessee department of labor workforce development and the mirror and its nashville the notices allowed the employees they be placed on and made a paid leave but would not be required to report to work importantly they were to receive their full pay and benefits and that's been stipulated and they would continue to accrue benefits while they were on that debt that leave of absence they were told to use that time that full time to look for other employment which terminated on the day that there was no under those set of facts or there's most likely a permanent cessation of the employment relationship but under these set of facts they they weren't asked to sign a release to get the sixty days pay they were placed on an internal  leave and they were remained internal vanderbilt candidates that they were allowed to get a preferential treatment for other jobs and they weren't eligible to file for unemployment until the end of that sixty day period they that they kept their benefits so that if if they had an accident after the forty fifth day they could claim under their vanderbilt help plan and you would have to process the paperwork so you would have a relationship with them that's right and they still continued to crew additional vacation time and sick leave during those sixty days which is different than what happens during a severance period and i guess i will raise one of the issues that was raised by the by the plaintiffs because it's very similar to your severance question judge bertelsmann and that is the pay in lieu of notice are and of course the department of labor and its workers guide asked the question what happens if an employer pays me sixty days without sending me a war notice and under those facts they found that there was happens concurrently with the pay in lieu of notice and that's not what happened here and in fact the the department of labor who we submit that agency interpretation of the should be given controlling we wait because it's not conflicting with the statute in the final regulations they answered a question that had been raised as to whether an employment loss occurs if an employee retains full pay in benefits and will walk around the campus thinking if they were if they had a health issue and had to go in and most of these workers don't forget we're hospital workers as those don't come around and even socialized right and there's really nothing on proper about that and it's not necessarily a fact that shows employment terminations or permanent cessation we're talking about patient care issues we're talking about a hospital and it's just not appropriate for folks who leaves to socialize in a hospital while there's patient care happening so the department of labor takes the position that they are not required to perform work and then there's only one appellate decision in the four circuit along case that we submit is directly on point and under those set of facts these four circuit found that the employment terminations does not encompass a situation in which the employer continues to pay its employees full wages and benefits the court concluded that when an employer commits to continued payment of wages and benefits to its employees the employment relationship has not ended and that was consistent with the purposes of the of the warne act which is to allow employees and workers and their families transition time to adjust to the prospective loss of employment seeking obtain alternative jobs if necessary to enter skilled or retrain and then allow the workers to successfully complete in the month along that workers guide that you adverted to a few minutes ago as i read it and correct me here if i'm wrong it it says it's a violation of the act but generally pay in place of notice means the employer has already met the panel specified in the act so why is it important to you whether we consider it  a violation but there's a in place of notice big question your honor in this case it's not pay in lieu of notice because the peer lieu of notice the question was what happens if my employer pays me sixty days without sending me a notice here there were actual notices telling and they'd be on a leave here is the date sixty days later than that you will be without a job and so pay in lieu of notice scheme assumes that there was a concurrent permanent cessation and that's the standard we're under and the four circuit continued that congress did not seek to protect employees expect expectations of performing work only their expectations of receiving full pay benefits of the juice is exactly what happened in this case now the plaintiffs in this case make make headway of the the practical effects driven analysis that was adopted by this circuit that standard to determine whether or not there was a break in employment and we submit your honour's that under this practical effect of an analysis there can still be no permanent cessation of the employment relationship w someone is receiving their full pay and benefits accruing benefits and also treated in remaining to be treated as an internal candidate for job openings also the the practical effect striven analysis language comes from cases dealing with that whether or not there's a technical terminations loss in the self a business context when you have an asset purchase or selling a company and on day one employee works for the the predecessor on day two they immediately work for the successor in order that the discussing the practical effects driven analysis as this kirk circuit said in other words where the terminations is at best technical we found no warning violation and that just really is not at issue in this case the clear language is whether or not there was a permanent cessation in the employment relationship and under our facts i don't believe it any reasonable try our fact could find that when someone is continuing on a leave of absence with full pain benefits that they have then terminated permanently until after they cease receiving pay and benefits and they can file for performers and people with with them disciplinary actions on their records and they were they were let go in july for those reasons and at that point venerable didn't know whether or not he would need another plan action  the people in the group of two seventy four who were given war notices were it was a different type of administration to the system they weren't dealing with people with low performance evaluations they were discharging people in sixty days whose jobs were either redundant or they could find it you know it and a need for they didn't need us jobs so it was a different type of administration if we will acknowledge it was based upon the same financial problems the university was facing if i my time is up to my answering the questions did you just say the first group was fifty nine hundred ninety four hundred basically the first group you're kind of calling the low hanging fruit because it turned out you had to cut down the tree ok thank you i got every three minutes  i please the court scott tift on behalf of the class of apparently former vanderbilt employees who lost their jobs on july first twenty thirteen with no notice your honor is this case you agreed that the classes one hundred ninety four  the class size that yes sorry you're on the class sizes one hundred and ninety four and the second group is two seventy nine while the second group that was clearly didn't during as far as we got  vanderbilt has stipulated on the record as evidence but the judge's opinion and it is the truth transcript it stipulated that these two groups combined reach five hundred even though the groups even though we didn't complete discovery to line up every person that's a stipulation on the record in the district court in the district court's opinion i got all that that's not what i asked you sir asked you is the first group one ninety four you said yes yes yes i asked you as the second group to seventy nine and you can answer that if you're in the second group what discovery had thus far afield was it was two seventy nine yes or and we were still because that's that's four seventy three so going back to judge boggs is question how do you but i understand that the two of have stipulated that that the that the worn number of five hundred is met here but for seventy three is not five hundred yes or i would say is but before completing the process of the discovery to address temporary employees who were laid off part time employees and other potential people who would add to that number the parties decided rather than expend further judicial resource completing the discovery they could stipulate that we reached the five hundred number and therefore if you're thinking that  in effect you think or you agree that the two seventy nine is really too low and that you would have gotten to a bigger number at least three hundred six presumably yes your honor if you could if you could that exaggerated further and did i hear you say that you represent the one ninety four were not the two seventy nine that's right you're ok so the two seventy nine even though they're the ones we're we're arguing about what happened to them you're saying they're happy or at least they're not unhappy and i guess i would ask the question how are they in any sense the two seventy nine how are they in any sense worse off with what actually happened than had they been given wore notice well your honor as the department of labor makes clear they do not have an actionable cause because they did receive the full value of the violation your honor pointed to the language in the in the workers guide where the department of labor actually makes this quite clear they say in response to in the workers guide the question of could we get sixty days of benefit instead of notice it says that while this is in violation of warn the provision of pay and benefits in place of a notice is a possible option and because warren provides for back pay and benefits for the period of the violation for up to sixty days generally this approach by the employer pay in place of notice means that the employer has already met the penalty specified in the act so that group of people don't have damages however to just focus on that ignores the aggregation provision that congress determined in express terms that a employer could not evade the requirements of the act by staging two separate groups of layoffs within ninety days such that they would not be aggregated and that's why the fundamental issue in the case is does the aggregation provisions apply let me ask you about the unemployment in their briefing and then here they have asserted that these folks could not  seek unemployment or could not receive unemployment benefits during this sixty day period do you dispute that your honor we do dispute that as mr michel from the record this was presented on a finite group of undisputed facts the undisputed facts say nothing as to eligibility for unemployment i don't know where they eligible sixty days out well then you don't dispute it you're just there to not stick it's not in the record and question what's in the record it's a question of what the tennessee lawyer they assert the tennessee law is one way and i just wondered if you had any i have a good about that because they can't seek unemployment because they're employed that seems like a pretty strong argument on their side on the other hand if they could seek unemployment because they're unemployed that would be a pretty strong argument on your that's right your honor and i guess i am agnostic in that i don't know i just i do think it's instructive to point to this circuit definition of employee and warn act cases previously most notably in a case referred to as killed they have versus electro wire products there the question was where a certain group of employees affected employees and the this court with actually judge sitting by appointment from the swedish to kentucky to find that since the act clearly states that in effect an employee is one who will likely suffer an employment loss as a result of a plant closing or mass layoff it is logical that it affected employees must be an employee in order to suffer employment loss the regulations define an employee as an individual who is either actively working or temporarily laid off or only with a reasonable expectation of recall the facts in this case are that on september seventeenth this group of employees mid shift were stopped from their job told to collect their belongings the access was turned off their e mail was turned off their cell phones were taken their computers were taken and they were sent on their way to receive these sixty days of benefit entirely regardless of whether they got other jobs and the enron and of course in other cases many times as courts pointed to the control as an addition to being an employer and to this definition these employees were neither actively working nor temporarily laid off they had been sent off to receive these benefits much akin to severance benefits regardless of if they got an eighty hour a week job the next day during the sixty day yes the department of labor also in its employment guide and the fourth circuit of course in d has noted that if an employee during that sixty day period gets another job that's deemed a voluntary terminations they're no longer inter title to benefits here vanderbilt had no concern whatsoever with if those employees got another job what they had the concern with was giving this ninety days pay and benefits to again evade the requirements of the act as to a group of employees who were terminated without notice seventy eight days earlier the in the first group that you here the difference between sixty days and two weeks yes you're on a base the sixty day damages pay and benefits minus the two weeks pay and the thousand dollar health care stipend so the damage would be approximately forty four days  course mr michel venables counsel referred to the fact that this court and frankly to my knowledge every circuit court that's addressed the definition of employment loss has applied what is called a practical effects driven analysis and the court did not limit that analysis as mr michel states to just cases where one company is purchased by the other to the contrary the court clearly stated that analysis then there are many kates cases cited and we would state again that the what actually happened the practical effect to any employee experiencing it is i've been terminated from my job today i'm getting paid sixty days which is going to prevent me from having worn damages but i'm on the street to do my and thing starting tomorrow and why that is relevant to those employees did not themselves have damages is the statute and the regulations interpret that statute are very clear that the whole point of the aggregation provision is that an employer can't stage a what could be one big layoff into a few to stay under that five hundred threshold the statute in section two hundred two d the aggregation if they just space that album a little further actually your honor congress chose to put a ninety day period of late about thirty dollars waited fourteen days longer with it just seems to me if you're going to argue this practical effect here i can understand your argument if in the second group they also didn't give them any benefits they just or they gave them two weeks benefits but the the majority of these people got the worn notice and benefits so i mean this is not a very clever way to stage this if you're trying to do of fade worn well it denied two hundred employees leaving their employment of sixty days pay and benefits by a staging that the statute specifically says shouldn't happen if it's designed to evade notice to two hundred people you know for those two hundred people without a job sixty days of notice which are staging this why didn't you screw the second group of people to well because at the time believed the second group of people might expand past the five hundred person limit on and of itself it didn't ultimately happen but the notice which is in the record that was sent to the government was at the time they thought it might be as much as a thousand people in that september group it  the two fifty three hundred range so that's why the notice based on the documents in the record was given at that time was because standing alone it would have met it however it didn't in fact and that's and as a result should have been it gets to a bigger number because the statute makes clear in the regulations incorporating it that for the aggregation provision to apply separate sets of layoffs have to individually be below the threshold and i see come up on what's the upper threshold the well the threshold is five hundred so if either of these were independently above five hundred in the aggregation position by its terms with apply because they're both under but aggregated five hundred you're on it i think it's important course the statute as the department of labor states is silent as to the nature of work that must be performed but let me go back to this shore the thrust of all of this is that they were they were intentionally staging this to be so that it didn't meet the threshold right next year on it but i just still have remained sort of negative doubt if they actually thought the second one was going and going to involve as many as a thousand employees then aggregation wouldn't apply well again the aggregate the only way that you would be staging this to avoid it if you thought the other that the second one would be under five hundred  be my understand that correctly well the allegations under five hundred five hundred then you aggregate right but it's an adult so saying that the that the notice was given the second time around to the government thinking it was going to be as avoid the evasion of the statute it is an objective numerical determination that if two groups within ninety days under five hundred i got the objective calculations i get that i'm i'm back to this rust in the briefing and in the discussion today that there was some sort of scheme here to avoid giving this notice and to avoid aggregation which seems to me by definition is refuted by what you've just said was the notice that what they thought the second one was going to be which would mean motivation of purpose was but what is clear from this court's precedent and from the statute in the regs is this a broadly remedial statute that is applied numerically where within two to ninety days two groups aggregate to be over the six hundred people on day two that you go to aggregate the two groups because i thought i thought it was you with if you caused more than five hundred to suffer an employment loss during a ninety day period it requires you to apply warned to everybody i thought that was the rule and i'm i just wrong well you want to be believe there may be ambiguity within the regulations that address that and there also is the issue of there's a thirty day period if it's up to a third of your of your workforce we can look at it if you don't have a good answer i had a separate question which was the question of whether you have to work to be employed if the if you know if you have a plant and it blows up and you say we're going to keep you on the payroll  for sixty days we don't know whether we're going to rebuild the factory or we're going to keep you on the payroll period we don't know if we're going to rebuild the factory and after a month you say we're not going to rebuild the factory  we're going to keep you on the payroll for another sixty days have you violated do you have a warrant obligation there they're not employed once you say that they're not going to come back sure no your honor what i would say is what matters is the is the totality of how you treat the purported employees if you're in a continue to given them all the benefits of employment not taking it not a losing total control over them by having no report back responsibility although that's when you say the benefits of employment don't you look at that from the employees point of view not coming not having the boss have control over you doesn't sound like you've lost the benefits of like you gained about a well i did and i understand that again to the september employees but i would say two things one just under this court's private previous definition it doesn't meet it but to these statutes aggregation provision is designed so that even if you satisfy that one group if you haven't met it in the record it is attached to exhibit d to the joint statement of on the speed of facts page twenty of twenty four question and answers for venerable employees will i be eligible to file for unemployment insert yes after the separation period if you have not found another position so it is right in there and then with respect to motive and this intent to invade after the separation period while they're being after the sixty day leave of absence that they referred to it as a separation period in the paperwork you will be on a separation period a leave of absence receive sixty days pay notice and so at the conclusion of that sixty days you're eligible to file of course vanderbilt couldn't guarantee anyone would receive unemployment but only eligible to fall if you hadn't received another john it doesn't sort of fix spliffs at least say you can't do it before the sixty day no it doesn't anyone could go fall employment any time they just may be denied but with respect to this this theory about the inner build attempting to evade the purposes of the act first of all there is no fact in the record shows this is an improper inference and secondly there is no mens rea or intent requirement within the law and the warrant act is very simple at least with aggregation you can aggregate you have a set ninety day period where you can aggregate employment losses within those ninety days and employers are entitled to rely upon those ninety days in structuring their actions and finally your honour's that that somebody is concerned about motive here correctly or incorrectly could you speak to the discussion i was having with your fellow counsel about this maximum or something if in fact you thought that you were but that you might layoff or terminate a thousand people the time you gave the second notice to the government would that then have precluded aggregation or not know and i know this may may hurt m it will concede that within no aggregation can occur within ninety days you could have it for my higher by example of two hundred in the night nine hundred the next day the two hundred still come two hundred would be entitled to notice i doesn't matter if it exists second group is if it's over five hundred you know your i guess that's what i need thank you so as a matter of both law and public policy the two hundred seventy nine non plaintiff employees did not suffer an employment loss until november sixteenth tw thirteen at the earliest there is nothing in the warren act it's a target of regulations or case law or the legislative history that requires an employer to continue to assign job duties to employees receiving notice of an impending layoff to avoid that immediate employment loss to the contrary the purposes of the actor best the filled with employee can have a full time sixty day opportunity while receiving wages and benefits to find another job and we would ask that your honor find that the terminations because that under under your argument is that that clearly you would not have a problem if you had just had a you know the new york city they call it a rubber room or where you told the two seventy nine come in every day sit down here do nothing but read the paper would have and that would be stupid to say that that's better than what happened here let's right they have the opportunity find other jobs thank you counsel thank you will