of the same statute, it is presumed that “Congress acts intentionally and purposefully in the disparate
inclusion or exclusion”, Barnhart, 534 U.S. at____ (internal quotations omitted).

The parties do not dispute that Roquct is a part-time employee pursuant to the WARN Act. See
29 U.S.C. § 2101(a)(8). As stated above, Congress defined an “employment loss” and a “part-lime
employce”. The definition of an “employment loss” docs not specifically exclude part-time employees
in any of the categories that are considered an cmployment loss. Nor does the definition ofan “affected
employee” exclude part-time employces.

Several other definitions in the statute specifically state that part-time employees are excluded.
For example, part-time employccs are excluded when determining if a plant closing or mass layoff has
occurred. See 29 U.S.C. § 2101(a)(2), (3). In both of these provisions, part-time employees are
specifically cxcluded when determining if the minimum number of employees have lost thcir
employment to constitute a plant closing or mass layoff. Defendant argues the exclusion of part-time
employecs in these calculations as requiring exclusion of part-time employees from being subject to an
employment loss. !owever, such an interpretation ignorcs that Congress, in specifically defining
employment loss, did not exclude part-time employees ftom such definition.

The language of the statute clearly demonstrates that in those sections of the statute where
Congress intended to exclude part-time employees, Congress specifically stated such exclusion. For
example, Congress’s definition of an “employer” includes a business enterprise that employs “100 or
more employees, excluding part-time employees; or 100 employees who in the aggregate work at Icast
4,000 hours per week...” 29 U.S.C. § 2101(a)(1). Accordingly, part-time employees may be included
in the calculation made in determining if a business entity is an employer under one definition but may
not be included under the alternate definition, Pursuant to the definitions of a plant closing and mass

layoff, part-time employees arc not included in calculating if a closing or mass layoff has occurred.



of more than 50 percent during cach month of any 6-month period.” 29 U.S.C. § 2101 (a)(6). Excluded

from the definition of an “employment loss” is the
case of a sale of part or all of an employer’s business, the seller shall be
responsible for providing notice for any plant closing or mass layoff in
accordance with scction 2102 of this title, up to and including the
effective date of the sale. After the effective date of the sale of part or
all of an cmployer's business, the purchaser shall be responsible for
providing notice for any plant closing or mass layoff... Notwithstanding
any other provision... any person who is an employee of the seller (other
than a part-time employee) as of the effective date of the sale shall be
considercd an employec of the purchaser immediately after the effective
date of the sale,

An “affected employee” is “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.” 29
U.S.C. § 2101(a)(5). A “part-time employee” is “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,” 29 U.S.C. § 2101(a)(8).

Defendant argues that based on the above statutory language, Roquet, as a pari-timc employee,
is excluded from cxperiencing an employment loss under the WARN Act; therefore, she is not a proper
party under the WARN Act.

in determining whether Roquet is included in the class of individuals that may experience an
employment loss and are allowed to bring suit, the Court begins within the language of the statute. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, ___ (2002) (Barnhart). The first step “is to determine
whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute
in the case.” Barnhart, 534 U.S, at___. The inquiry ccases “if the scheme is coherent and consistent.”

Barnhart, 534 U.S, at___. A general principle of statutory construction provides that when Congress

has included particular language in one section of a statute but omits such language in another section


Accordingly, part-time employees are never included in determining whether a plant closing or mass
layoff has occurred. These cxamples demonstrate that Congress specifically slated when part-time
employees were not to be included in certain provisions under the Act. Therefore, the exclusion of part-
time employees in some of the criteria under that WARN Act cannot be interpreted as cxcluding part-
time employces as experiencing an employment loss when employment loss is specitically defined and
such definition does not exclude part-time cmployees. See Barnhart, 534 U.S. at__. Based on the
plain and unambiguous statutory language, part-time employees can expericnce an employment loss and
are proper parties ina WARN Act suit.

This interpretation is further supported by the United States Department of Labor’s (“DOL”)
interpretation of the statute. The DOL is authorized by 29 U.S.C, § 2017 to “prescribe such regulations
as may be necessary to carry out this chapter”, The DOL has found that “[W]hile part-time employces
are not counted in determining whether a plant closing or mass layoff thresholds are reached, such
workers are due notice.” 20 C.F.R. § 639.6. See also, Carpenters Dist. v. Dillard Dept. Stores, 778 F.
Supp. 297, 313-14 (B.D. La. 1991), rev'd on other grounds, 15 F.3d 1275 (5" Cir. 1994), cert. denied,
513 U.S. 1126 (1995) (finding that part-time employces are covered under the WARN Act because
Congress did not specifically exclude part-time cmployees under the definition of an “affected
employce”); Solberg v. Inline Corp., 740 F. Supp. 680, 685 (D. Minn. 1990)( stating, ‘Congress’ intent
was to exclude ‘part-time employees’ from the calculation of a mass layoff, not to exclude them from
protection once a mass layoff occurs”); Local 1239, Int'l Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers, & Helpers v. Alisteel. 9 F. Supp. 2d 901, 905 (N.D. Ill. 1998)
(finding part-time employces would not reccive a windfall if“calendar approach” was uscd to calculate

damages).



* Minute Order Porm (0697)

United States District Court, Northern District of Illinois

lame judge dye if Ochi
wpe Magus Jude John W. Darrah “Than assigned fudge
CASE NUMBER 02 C 2689 DATE 8/14/2002
CASE NANCY J. ROQUET vs. ARTHUR ANDERSON LLP
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state brietly the nature
of the motion being presented.]

al) =

MOTION:
DOCKET ENTRY:
4

(on) a Filed motion of [ use listing in “Motion” box above.]
(2) 0 Brief in support of motion due _
(6)) Oo Answer brief to motion due,__. Reply to answer bricfdue__.
(4) a Ruling/Hearing on setfor at
(5) dq Status hearing[held/continued to] [set for/re-set for] on___set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on_——ssetfor_— at.
(7) a Trial[set for/re-sct for]on ss at_—
(8) oO [Bench/Jury trial] [Hearing] held/continued to ___at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)

OFRCP4(m) OO Local Rule 41.1 OFRCP41(a)(1) ( FRCP41(a)(2).
ao) [Other docket entry] Status hearing held and continued to 9/24/02 at 9:00 a.m, Plaintiff's motion

for class certification is dismissed as moot [11-1]. Enter Memorandum Opinion And Order. Defendant’s
motion to dismiss is denied.

[For further detail see order attached to the original minute order.]

No notices required.

Mail AO 450 form.

No notices required, advised in open court.
Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices,

Copy to judge/magistrute judge.

number of notices

5 Lg cite
date docketed,

Laine san?
8999 Lantigy on ste lOa

‘ } date mailed notice
courttoom a

deputy's
initials

Date/time received in
mailing deputy initials

central Clerk's Office



%

For the reasons stated above, part-time employees are included in those employees that may

experience an employment loss, and Defendant’s Motion to Dismiss is denied. \

Dated: Crewe ZOO td
( f

\ \
Noun. DARRAH
ited States District Judge



UNITED STATES DISTRICT COURT be : \ -
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION fil: le
NANCY J. ROQUET and CORETTA ROBINSON, )
Plaintiffs, } No. 02 C 2689
v. } Judge John W. Darrah
ARTHUR ANDERSON LLP,
Defendant. }

Wie

MEMORANDUM OPINION AND ORDER

Plaintiffs, Nancy J, Roquet (“Roquet”) and Coretta Robinson (“Robinson”), brought a class
action suit against efendant, Arthur Anderson LLP (“Arthur Anderson”), alleging Defendant violated
the Worker Adjustment and Retraining Notification Act (“WARN Act”), 29 U.S.C. § 2101-2109.
Presently before the Court is Defendant’s Motion to Dismiss.

In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any
reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-Mosby
v. Corporate Receivables, Inc., 205 F 3d 323, 326 (7th Cir. 2000). Dismissal is only warranted if the
plaintiff can prove no set of facts in support of its claims that would entitle it to relief. See Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).

Arcading of the Complaint supports the following summary of the alleged conduct of the parties.

Rogquet was employed by Arthur Anderson as an Executive Assistant. On April 8, 2002,
Roquet’s employment was terminated as part of a mass layoff by Arthur Anderson. At the time of the
mass layoff, Roquet had been employed at Arthur Andcrson for approximately three months. Roquct
received two weeks’ severance pay, which was termed “job scarch” in the notice she received

concerning the mass layoff.

23



Robinson was also an employee of Arthur Anderson who was terminated as part of the mass
layoff. Robinson reccived five weeks’ severance pay. Plaintiffs allege that Defendant violated the
WARN Act by failing to provide sixty days’ waming of its mass layoff.

Defendant secks to dismiss the Amended Complaint as to Roquct and all other part-time
employees, arguing that part-time employees are cxcluded from coverage under the WARN Act.

Under the WARN Act, an cmployer who orders a mass layoff or plant closing in violation of
Section 2102 of the Act is “liable to each aggrieved employee who suffers an employment loss as a
result of such closing or layoff...” 29 U.S.C. § 2104(1). Section 2102 requires that an employer not
order a closing or mass layoff until the end ofa sixty-day period after the employer serves written notice
of such closing or layoff. 29 U.S.C. § 2102(a).

An “employer” is defined as a business cnterprise that employs cither 100 or more employces,
excluding part-time employees; or 100 or more employecs who, in the aggregate work, at least 4,000
hours per week, exclusive of overtime. 29 U.S.C, § 2101(a)(1). A plant closing occurs if single site
of employment is permanently or temporarily shutdown or if onc or more facilities or operating units
within a single employment site is shutdown, if the shutdown results in an employment loss at a single
employment site “during any 30-day period for 50 or more employees excluding any part-time
employees....” 29 U.S.C. § 2101(a)(2). A mass layoff occurs where a reduction in work force results
in an employment loss at a single site of employment during any 30-day period for at least 33 percent
of the employees (cxcluding any part-time employces; and at Icast 50 employees (excluding any part-
time employees; or at least 500 employces (excluding any part-time cmployees). 29 U.S.C. §
2101(a)(3)(B).

An “employment loss” is “(A) an employment termination, other than discharge for causc,

voluntary departure, or retirement, (B) a layoff exceeding 6 months, or (C) a reduction in hours of work