PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-1141

HARRY PENNINGTON, III; TIMOTHY LORENTZ, on behalf of themselves and 

all others similarly situated,

 Plaintiffs – Appellants,

v.

FLUOR CORPORATION; FLUOR ENTERPRISES, INC.; SCANA 

CORPORATION; FLUOR DANIEL MAINTENANCE SERVICES, INC.; 

SOUTH CAROLINA ELECTRIC & GAS COMPANY,

 Defendants – Appellees.

--------------------------------

ASSOCIATED BUILDERS AND CONTRACTORS, INC.; ASSOCIATED 

GENERAL CONTRACTORS OF AMERICA, INC.; SOUTH CAROLINA 

CHAMBER OF COMMERCE; CHAMBER OF COMMERCE OF THE UNITED 

STATES OF AMERICA,

 Amici Supporting Appellees.

No. 21-1143

LAWRENCE BUTLER; LAKEISHA DARWISH; JIMI CHE SUTTON,

 Plaintiffs – Appellants,

v.
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FLUOR CORPORATION; FLUOR ENTERPRISES, INC.,

 Defendants – Appellees.

------------------------------

ASSOCIATED BUILDERS AND CONTRACTORS, INC.; ASSOCIATED 

GENERAL CONTRACTORS OF AMERICA, INC.; SOUTH CAROLINA 

CHAMBER OF COMMERCE; CHAMBER OF COMMERCE OF THE UNITED 

STATES OF AMERICA,

 Amici Supporting Appellees.

Appeals from the United States District Court for the District of South Carolina, at Rock 

Hill. J. Michelle Childs, District Judge. (0:17-cv-02094-JMC; 0:17-cv-02201-JMC)

Argued: October 27, 2021 Decided: November 30, 2021

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge 

Niemeyer and Judge Motz joined.

ARGUED: Jack A. Raisner, RAISNER ROUPINIAN LLP, New York, New York, 

Charles Anthony Ercole, KLEHR HARRISON HARVEY BRANZBURG LLP, 

Philadelphia, Pennsylvania, for Appellants. Charles Theodore Speth II, OGLETREE, 

DEAKINS, NASH, SMOAK & STEWART, P.C., Columbia, South Carolina, for SCANA 

Appellees; John Hagood Tighe, FISHER & PHILLIPS, LLP, Columbia, South Carolina, 

for Fluor Appellees. ON BRIEF: René S Roupinian, Isaac Raisner, RAISNER 

ROUPINIAN LLP, New York, New York; Lee D. Moylan, Rona J. Rosen, Glenn Weiner, 

KLEHR HARRISON HARVEY BRANZBURG LLP, Philadelphia, Pennsylvania; Amy 

L. Gaffney, GAFFNEYLEWIS LLC, Columbia, South Carolina; David B. Yarborough, 

Jr., Reynolds Blankenship, YARBOROUGH APPLEGATE, LLC, Charleston, South 

Carolina, for Appellants. D. Michael Henthorne, Christopher R. Thomas, James R. Silvers, 

Piper R. Byzet, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., 

Columbia, South Carolina, for SCANA Appellees. David R. Kresser, Matthew R. Korn, 

FISHER & PHILLIPS LLP, Columbia, South Carolina, for Fluor Appellees. Stephanie E. 
3

Lewis, William R. Gignilliat, Allison Chalmers Hawkins, JACKSON LEWIS P.C., 

Greenville, South Carolina, for Amici South Carolina Chamber of Commerce and the 

Chamber of Commerce of the United States of America. Tara S. Morrissey, Stephanie A. 

Maloney, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C., for 

Amicus Chamber of Commerce of the United States of America. Maurice Baskin, 

Washington, D.C., Bill Foster, LITTLER MENDELSON, P.C., Greenville, South 

Carolina, for Amicus Associated Builders and Contractors, Inc. Gregory R. Begg, Michael 

J.P. Schewe, PECKAR & ABRAMSON, P.C., River Edge, New Jersey, for Amicus 

Associated General Contractors of America, Inc. 
4

WILKINSON, Circuit Judge:

In 2017, SCANA, an electric and natural gas public utility, halted construction at 

the V.C. Summer Nuclear Station in South Carolina. As a result, Westinghouse Electric 

Company (WEC), a contractor with SCANA, laid off its employees working at the project, 

as did Fluor, a subcontractor hired by WEC. Employees of both WEC and Fluor then sued

SCANA and Fluor, alleging that the companies had failed to give notice of the plant closure 

and layoffs as required under the Worker Adjustment and Retraining Notification (WARN) 

Act. The district court granted summary judgment to both defendants, holding that SCANA 

was not required to give notice to the employees of contractors working on-site, and that 

Fluor had complied with the WARN Act. For the following reasons, we affirm.

In 2008, SCANA, along with Santee Cooper, a state-owned electric and water 

utility, set out to build a nuclear power plant. The project, two nuclear reactors at the V.C. 

Summer Nuclear Station in central South Carolina, was an ambitious one. Along with an

unrelated nuclear reactor in Georgia, V.C. Summer “represent[ed] the first new generation 

of nuclear power plant construction in the United States in 30 years.” J.A. 380. To build 

the project, the two utilities entered into an agreement with WEC, which was tasked with 

designing and manufacturing the reactors. 

Eight years later, the project was substantially over budget and behind schedule. 

WEC needed a new subcontractor to manage construction at the site and turned to Fluor, 
5

hoping in part that the new construction company could turn the project around. Instead, a

bad situation became worse. According to the plaintiffs, Fluor soon conducted an analysis 

that concluded the project would run a further $6 billion over budget and would take 

another three years to complete. Furthermore, WEC would be liable for those costs, since 

it had agreed to build the project for a fixed price. In March 2017, WEC filed for Chapter 

11 bankruptcy.

Under an interim agreement between SCANA and WEC, WEC would continue to 

perform work at the site, while SCANA would make payments to Fluor directly on behalf 

of WEC. As things stood in the summer of 2017, therefore, SCANA, WEC, and Fluor all 

continued to work at the plant. SCANA held the license from the Nuclear Regulatory 

Commission and was required to oversee the project and ensure that the work conformed 

with the terms of the license. But pursuant to its agreement with SCANA, WEC was solely 

responsible for the means and methods that it employed. Fluor meanwhile, under the terms 

of its own agreement with WEC, managed the actual construction on the site. Fluor had no 

direct contractual relationship with SCANA, aside from the payments made under the 

interim agreement.

On July 7, 2017, this house of cards finally collapsed when Santee Cooper informed

SCANA that it intended to discontinue funding its portion of the project. SCANA could 

not continue the project on its own and on July 31, after Santee Cooper’s board formally 

voted to suspend funding, SCANA abruptly stopped all construction at the site. It is 

undisputed that SCANA alone ordered the plant’s closure and gave neither Fluor nor WEC 

any advance notice. SCANA for its part states that there was no closure to announce until 
6

Santee Cooper’s board actually voted and that SCANA had in fact spent much of July 

looking for other partners to replace Santee Cooper. Moreover, any advance notice of the 

project’s closure could violate insider trading laws and would jeopardize ongoing efforts 

by SCANA and Santee Cooper to recover a contractual guarantee from WEC’s parent 

company, Toshiba. When the site closed, Fluor and WEC laid off a total of approximately 

4,000 workers employed at the project.

Following the plant closure, employees at WEC and Fluor filed a class action 

complaint against SCANA and Fluor in federal district court, contending that the two 

companies had violated their obligations under the WARN Act.

That statute was “adopted in response to the extensive worker dislocation that 

occurred in the 1970s and 1980s.” Hotel Emps. & Rest. Emps. Int’l Union Local 54 v. 

Elsinore Shore Assocs., 173 F.3d 175, 182 (3d Cir. 1999). In many cases, businesses shut 

down or laid off workers after giving them little or no notice, a practice that the WARN 

Act was designed to eliminate. See Marisa Anne Pagnattaro, The Perils of Control: 

Affiliated Liability Under the WARN Act, 41 Am. Bus. L.J. 313, 318 (2004) (citing H.R. 

Rep. No. 100-285, at 11 (1987)). The “overarching aim” of the statute is “to provide 

advance notice of worker dislocations to affected workers, unions, and governments.” 

Richard W. McHugh, Fair Warning or Foul? An Analysis of the Worker Adjustment and 

Retraining Notification (WARN) Act in Practice, 14 Berkeley J. Emp. & Lab. L. 1, 4 (1993).
7

The WARN Act achieves this goal primarily through a provision that requires 

covered employers to give sixty days of written notice before ordering a plant closing or a 

mass layoff. See 29 U.S.C. § 2102(a). The employer must give this notice to each “affected 

employee,” or to their union representative, as well as to the state and the unit of local 

government where the closing or layoff occurs. See id. An employer who runs afoul of the 

statute is liable to each aggrieved employee for back pay during the period of the violation, 

as well as civil penalties of $500 per day to the local government involved. See id.

§ 2104(a)(1)–(3).

As the case progressed, SCANA and Fluor moved for summary judgment. SCANA 

argued that it was not liable under the WARN Act since it had not employed any of the 

plaintiffs, all of whom worked for either WEC or Fluor. And Fluor argued that it could not 

reasonably have foreseen SCANA’s sudden closure of the plant and that it therefore was 

relieved of liability under a statutory exception for unforeseeable business circumstances. 

See 29 U.S.C. § 2102(b)(2)(A).

The district court agreed, granting summary judgment to both SCANA and Fluor in 

a thorough and thoughtful opinion. See Butler v. Fluor Corp., 511 F. Supp. 3d 688 (D.S.C. 

2021). The court first held that SCANA was not an “employer” of the plaintiffs under a 

multi-factor test enumerated by the Department of Labor. See id. at 698 (citing 20 C.F.R. 

§ 639.3(a)(2)). The court noted, for instance, that SCANA had no ownership interest in 

WEC or Fluor, nor did it share any common directors or officers with those companies. Id.
8

at 700. Likewise, the companies were “wholly independent and unaffiliated” and there was 

no evidence in the record that SCANA had integrated its personnel policies with those of 

WEC or Fluor. Id. at 707–11. And on one important factor, the “de facto exercise of 

control,” the court reviewed the record extensively, see id. at 700–07, and concluded that 

SCANA had not exerted greater control over Fluor or WEC than “would be expected 

between an independent contractor and a principal client, particularly in a highly regulated 

industry,” id. at 707. Accordingly, the district court held that SCANA had not been required 

to give notice to the plaintiffs. Id. at 711.

The court then considered Fluor’s liability under the statute. The court concluded 

that the abrupt shutdown, which Fluor had not anticipated, qualified as an unforeseeable 

business circumstance and that Fluor was thus exempted from giving 60 days of notice. Id. 

at 713–19 (citing 29 U.S.C. § 2102(b)(1)(2)(A)). The court also determined that Fluor had 

complied with the statutory requirement that it send notice as soon as practicable, see 29 

U.S.C. § 2102(b)(3), since the company mailed notice to its employees in the days 

following the closure of the plant, see Butler, 511 F. Supp. 3d at 719–20.

The plaintiffs timely appealed the district court’s grant of summary judgment to this 

court. We review orders granting summary judgment de novo, viewing the evidence in the 

light most favorably to the nonmovant. Monahan v. Cnty. of Chesterfield, 95 F.3d 1263, 

1265 (4th Cir. 1996). We affirm a grant of summary judgment where “there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a).
9

We begin by addressing SCANA’s liability under the WARN Act. The plaintiffs

contend that SCANA functioned as their “employer” for WARN Act purposes, even 

though they were employed by contracting firms entirely unaffiliated with SCANA. But 

such an interpretation would go beyond the textual limits of the statute and its 

implementing regulations and would subject plant owners to the prospect of uncertain and 

ill-defined liability.

The basic premise of the WARN Act is that firms must provide their own employees

with notice before closing a plant. The operative provision of the Act states that “[a]n 

employer shall not order a plant closing or mass layoff until the end of a 60-day period 

after the employer serves written notice of such an order” to “each affected employee” (or 

their union representative) and to the local government. 29 U.S.C. § 2102(a) (emphasis 

added). “[A]ffected employees” are in turn defined as “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.” Id. § 2101(a)(5) (emphasis added). The WARN Act 

regulations explicitly state that “contract employees who have a separate employment 

relationship with another employer and are paid by that other employer” do not qualify as 

“affected employees.” 20 C.F.R. § 639.3(e).

This focus on the employer-employee relationship is quite natural. It reflects the 

basic purpose of the statute, which was to prevent businesses from leaving their workers
10

out in the cold after abruptly closing a job site. As Senator Kennedy put it, the statute was 

designed to reflect “the American value of fairness, fairness to men and women who have 

devoted in many instances their lifetime to a particular corporation, a particular business, 

and a particular industry and deserve more than a pink slip at the end of a Friday afternoon 

to indicate to them that their lives will be disrupted.” 100 Cong. Rec. S. 16671 (daily ed. 

July 6, 1988) (statement of Sen. Kennedy).

The notice requirement thus gives a company’s employees, as well as the overall 

community, some time to adapt and make plans for the impending closure or layoff. See 

20 C.F.R. § 639.1. This is a weighty and important obligation, but it is not unlimited. There 

is no provision in the statute requiring employers to give notice or render assistance to other 

firms or workers that may be touched by a plant’s closure. Instead, the statute imposes an 

obligation that is both definite and achievable. The scope of liability is clear, since it 

extends precisely to a company’s own employees, so businesses need not make difficult 

judgment calls as to which unaffiliated firms are likely to have employees affected in some 

way by a plant closure. And compliance is also straightforward, since it will usually be 

easier for a company to communicate and provide notice to its own employees than to other 

members of the general workforce. See 20 C.F.R. § 639.7 (detailing the different 

requirements that notice to various recipients must contain).

Thus the text of the statute, as well as its basic purpose, indicates that the plaintiffs 

do not have a valid claim against SCANA. None of them were in any common sense of the 

word “employees” of SCANA; instead, they either worked for WEC, a contractor hired by 

SCANA, or for Fluor, a subcontractor hired by WEC and with no direct contractual 
11

relationship to SCANA at all. And as to its own employees, SCANA complied with the 

WARN Act by providing 60 days of compensation beginning on the day of the project’s 

closure, thereby satisfying its obligations under the statute. See Long v. Dunlop Sports Grp. 

Ams., Inc., 506 F.3d 299, 303 (4th Cir. 2007).

Plaintiffs, however, say this fails to resolve the matter. Even though they were not 

formally employed by SCANA, they argue that SCANA should nonetheless be treated as 

their employer for WARN Act purposes. They contend that, by shutting down the plant 

without giving notice to WEC or Fluor, SCANA compelled the contractors to lay off 

employees without the required 60 days of notice. As a result, they suggest, SCANA should 

be held responsible as the “employer” of these laid-off workers.

This argument simply cannot be squared with the statute—whether as examined on 

its face, as construed by the agency, or as interpreted by the courts. It is true that in some 

instances distinct businesses may count as the same employer for the purposes of the 

WARN Act. This would be the case where the operational differences between the two 

companies are purely formal, so that for all intents and purposes the businesses really do 

operate as the same employer. See Pearson v. Component Tech. Corp., 247 F.3d 471, 495 

(3d Cir. 2001) (noting that the proper inquiry is “into whether the two nominally separate 

entities operated at arm’s length”).

In fact, the cases where courts have imposed single-employer liability have 

generally involved the parent companies of wholly owned or closely held subsidiaries. See, 
12

e.g., Guippone v. BH S & B Holdings LLC, 737 F.3d 221, 227–28 (2d Cir. 2013); Childress 

v. Darby Lumber, Inc., 357 F.3d 1000, 1006–07 (9th Cir. 2004); Hampton v. Navigation 

Cap. Partners, Inc., 64 F. Supp. 3d 622, 629 (D. Del. 2014). But see In re APA Transp. 

Corp. Consol. Litig., 541 F.3d 233, 244–45 (3d Cir. 2008) (declining to impose liability 

where affiliate is autonomous in its management and decision-making); Wholesale & 

Retail Food Distrib. Local 63 v. Santa Fe Terminal Servs., Inc., 826 F. Supp. 326, 334–35 

(C.D. Cal. 1993) (same). 

1.

Independent contractors, not subsidiaries, employ the plaintiffs in the case at bar. 

The Department of Labor has provided a framework for determining whether independent 

contractors should be considered part of the contracting company for WARN Act purposes, 

“depending upon the degree of their independence” from the contracting company. 20 

C.F.R. § 639.3(a)(2). In making this determination, “[s]ome of the factors to be 

considered . . . are (i) common ownership, (ii) common directors and/or officers, (iii) de 

facto exercise of control, (iv) unity of personnel policies emanating from a common source, 

and (v) the dependency of operations.” Id. These factors are not exhaustive and in the past 

some courts employed them alongside other tests to determine corporate liability. See, e.g., 

Local 397, Int’l Union of Elec., Elec. Salaried Mach. & Furniture Workers v. Midwest 

Fasteners, Inc., 779 F. Supp. 788, 792–800 (D.N.J. 1992). We agree, however, with the 

Third Circuit’s decision in Pearson that “the [Department of Labor] factors are the best 

method for determining WARN Act liability because they were created with WARN Act 

policies in mind.” 247 F.3d at 489; see also Guippone, 737 F.3d at 226 (adopting this 
13

approach); Administaff Cos., Inc. v. N.Y. Joint Bd., Shirt & Leisurewear Div., 337 F.3d 

454, 458 (5th Cir. 2003) (same).

At the outset, we note that none of the five factors indicates that liability may extend 

from a direct employer to an operationally independent and unaffiliated company. Instead, 

each factor assesses the degree of control or affiliation between the entities at issue. Here, 

the district court carefully applied these criteria to the facts of SCANA’s relationship with 

WEC and Fluor and concluded that all five either favored the defendants or at least did not 

favor the plaintiffs. See Butler, 511 F. Supp. 3d at 698–711. 

We agree with that analysis. It is immediately clear that several of the factors are 

not met: On the first two factors, there was no common ownership between SCANA and 

WEC or Fluor, nor did they share any directors or officers. On the fourth factor, “unity of 

personnel policies,” WEC and Fluor were responsible for hiring, firing, and paying their 

own personnel. They, not SCANA, decided which employees would be responsible for 

accomplishing which tasks. See J.A. 2027, 2034, 2038. As the district court noted, WEC 

and Fluor employees did not even receive SCANA’s employee handbook, nor were they 

at all integrated with SCANA’s human resources department. See Butler, 511 F. Supp. 3d 

at 708; J.A. 2185, 2236. And there was no “dependency of operations” since WEC and 

Fluor operated “distinct businesses that were not dependent” on SCANA. McKinney v. 

Carlton Manor Nursing & Rehab. Ctr., Inc., 868 F.3d 461, 464 (6th Cir. 2017). The firms 

operated as “completely separate entities in completely different industries.” Butler, 511 

F. Supp. 3d at 710. Indeed, both companies functioned on a global scale, managing other 

unrelated projects during the events in question, and Fluor continued to operate on its own
14

following the closure of the project. See J.A. 2030, 2073. These are powerful indicia of 

independence. See In re APA, 541 F.3d at 245 (“[T]here is no stronger evidence” that 

dependency of operations is not met “than that [one company] continued to operate without 

incident after [the other company] folded.”). Factors (i), (ii), (iv), and (v), therefore, all 

indicate that SCANA does not qualify as a relevant “employer.”

The plaintiffs hardly contest any of this. Instead, they rest their appeal almost 

exclusively on factor (iii), de facto exercise of control. But even assuming arguendo that 

this factor could somehow be dispositive on its own, the record makes clear that it is not 

satisfied here.

2.

De facto exercise of control applies where one company is “the decisionmaker 

responsible for the employment practice giving rise to the litigation.” Pearson, 247 F.3d at 

503–04. The factor thus incorporates a longstanding theory of affiliate liability that holds 

parents accountable where they are directly liable for the actions of a subsidiary. See id. at 

486–87, 490. The plaintiffs contend that SCANA satisfied this test by abruptly shuttering

the reactors at V.C. Summer without giving advance notice to Fluor or WEC. This decision, 

they argue, led ineluctably to WEC and Fluor laying off their employees without the 

required 60 days of notice. Therefore, the argument goes, SCANA was directly liable for 

the fact that these employees failed to receive the 60 days of notice to which they were 

entitled.

This argument misapprehends the nature and purpose of the direct liability test. That 

test did not develop as a general causal inquiry to allocate blame between unaffiliated 
15

companies. Rather, it developed as a basis for liability in the specialized context of parentsubsidiary relationships. It remains a narrow test, one that is designed to apply in the 

unusual case where a company commits a wrongful act through the legal form of a distinct 

entity. See DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit Co., 540 F.2d 681, 683 

(4th Cir. 1976) (“‘[I]n an appropriate case and in furtherance of the ends of justice,’ the 

corporate veil will be pierced, and the corporation and its stockholders ‘will be treated as 

identical.’” (quoting 18 Am. Juris 2d at 559)). The background of the direct liability test 

makes this clear. As the Supreme Court has put it, “[i]t is a general principle of corporate 

law deeply ‘ingrained in our economic and legal systems’ that a parent corporation . . . is 

not liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998)

(quoting William O. Douglas & Carrol M. Shanks, Insulation from Liability Through 

Subsidiary Corporations, 39 Yale L.J. 193, 193 (1929)). Liability may attach on a finding 

that the parent company acted through the subsidiary with respect to a discrete act or 

transaction. See Esmark, Inc. v. NLRB, 887 F.2d 739, 756 (7th Cir. 1989); Johnson v. 

Flowers Indus., Inc., 814 F.2d 978, 981 (4th Cir. 1987) (stating that liability in the 

employment context may attach to a parent that “control[s] the employment practices and 

decisions of the subsidiary”). The theory of direct liability, however, does not translate 

easily outside of the parent-subsidiary context since “[a] third party,” unlike a parent 

corporation, confronts a corporation “as an independent entity, with its own 

decisionmaking apparatus geared towards advancing [its] independent interests.” Esmark, 

887 F.2d at 756.
16

In the WARN Act context, courts have found direct liability only in two 

circumstances. First, and unsurprisingly, courts have applied the test to parent-subsidiary 

relationships where the parent through its own management is responsible for a WARN 

Act violation. See, e.g., Guippone, 737 F.3d at 227–28; Garner v. Behrman Brothers IV, 

LLC, 260 F. Supp. 3d 369, 378–79 (S.D.N.Y. 2017). Second, the test may also apply to

certain lender-borrower relationships where the lender’s contractual rights give it an 

unusual degree of control over the borrower. See Pearson, 247 F.3d at 492–94. After all,

“it will not always be clear when a party should be characterized as a ‘lender,’ when a party 

should be characterized as a parent or owner, and when a party occupies both roles.” Id. at 

493. Applying direct liability in this context reflects the reality that lenders may “exercise 

such pervasive control over a delinquent borrower’s business operations . . . that the 

borrower is no longer ‘independent’ of the lender.” McKinney, 868 F.3d at 465. But such 

cases, “in which the loan agreement allows the lender to take control of a borrower who 

cannot repay a loan, offer[] a poor analogy to a . . . relationship that is arm’s length from 

beginning to end.” Id.

3.

Direct liability is less applicable to a situation such as this one. SCANA was neither 

parent nor lender to WEC or Fluor. All three businesses were unaffiliated, contracting with 

each other at arm’s length. It is not unusual for one company to make a business decision 

that causes unaffiliated companies to modify their own operations. Indeed, the WARN Act 

regulations explicitly contemplate such a scenario. See 20 C.F.R. § 639.9(b)(1) 

(referencing “[a] principal client’s sudden and unexpected termination of a major contract 
17

with the employer” as an unforeseeable business circumstance). There is simply nothing in 

the statute, in the regulations, or in settled corporate or agency law, that suggests that a 

plant owner’s decision to close a plant renders the owner liable to the employees of 

independent and unaffiliated companies who are laid off following that decision. We have 

no basis for holding that mere ownership of a construction site creates invariable WARN 

Act liability with regard to those who work with independent companies at the site.

To read such a rule into the statute would substitute an indeterminate test for the 

straightforward employer-employee standard that Congress adopted. See 29 U.S.C. 

§ 2102(a). Under the plaintiffs’ test, a plant owner would have to determine which 

contractors would be covered by the Act and which would not bring into play the Act’s 

obligations. It is hardly clear how the owner could make these judgments about unaffiliated 

businesses. And it might prove difficult to send the required notice, since there may be no 

easy way to identify and communicate with workers employed by third parties.

Finally, there is simply no other evidence that SCANA was “the decisionmaker 

responsible for the employment practice giving rise to the litigation.” Pearson, 247 F.3d at 

503–04. We agree with the district court that “SCANA’s control of Fluor and WEC was 

largely within the expected bounds of a principal client’s relationship with its hired 

contractor or subcontractor.” Butler, 511 F. Supp. 3d at 702. SCANA was required to 

oversee the project and ensure that the work conformed with the terms of its regulatory 

license. But SCANA did not directly manage the work done by WEC or Fluor employees; 

in fact, SCANA management testified that an employee “could be fired” for directing 

contractor work. J.A. 2296–97. The contracting employees received instructions and 
18

training from their direct supervisors, not from employees at SCANA, and, outside of a 

limited role in approving key personnel, SCANA had no authority to dismiss any of these 

employees.

In response, the plaintiffs allude to SCANA’s general oversight of the job site as 

well as to a certain degree of coordination between SCANA and the contractors. For 

instance, they note that SCANA conducted recurring meetings to plan work at the site, that

SCANA consulted with WEC about the project schedule, and that SCANA at times would

request corrective action pursuant to its regulatory obligations. But this falls short of “de 

facto exercise of control.” Some degree of cooperation and oversight between owner and 

contractor is inevitable in any project, and there is little evidence that SCANA transgressed 

the usual boundaries of this relationship, let alone that it exerted any sort of pervasive 

control over WEC or Fluor.

In short, the five Department of Labor factors make clear that this case does not 

meet the standard for single-employer liability. Any different result would need to await 

the action of Congress. We accordingly affirm the district court’s grant of summary 

judgment to SCANA.

We turn finally to Fluor’s liability under the WARN Act. Unlike SCANA, Fluor 

plainly employed some of the plaintiffs here. But the district court concluded that Fluor 

was relieved of any obligation to provide 60 days of notice by the unforeseeable business 

circumstances exception. See Butler, 511 F. Supp. 3d at 718–19. That statutory provision 
19

applies where “the closing or mass layoff is caused by business circumstances that were 

not reasonably foreseeable as of the time that notice would have been required.” 29 U.S.C. 

§ 2102(b)(2)(A). The plaintiffs do not contest the application of this provision on appeal, 

nor could they: it is undisputed that Fluor was taken unawares by SCANA’s sudden 

decision to close the plant. And, as we have seen, the WARN Act’s regulations explicitly 

contemplate “[a] principal client’s sudden and unexpected termination of a major contract” 

as an example of an unforeseeable business circumstance. 20 C.F.R. § 639.9(b)(1). Instead, 

the plaintiffs contend that Fluor failed to provide “as much notice as is practicable,” as is 

required for employers who rely on the unforeseeable business circumstances exception. 

29 U.S.C. § 2102(b)(3). The plaintiffs suggest that Fluor violated this provision by giving 

notice belatedly and improperly.

We are not persuaded. The record makes clear that Fluor took pains to provide the 

required information to its employees, even amid the unsettling circumstances of the 

sudden shutdown. Fluor’s HR team drafted and distributed an FAQ document to the Fluor 

employees on the very day of the shutdown while working remotely from a local hotel. See 

J.A. 4005–06. The following day, Fluor gave notice to state and local officials, and within 

six business days it began sending a total of 50,000 pages of notice to its employees. See 

J.A. 4006–07, 4221. We agree with the district court that “[s]uch notice was reasonable 

given the magnitude of the Project, the presence of thousands of workers at the job site, 

and the abrupt nature of the shutdown.” Butler, 511 F. Supp. 3d at 719. And while the 

plaintiffs argue that the notice sent was defective since it failed to include a required 

telephone number, the regulations are clear that “minor, inadvertent errors” are not “to be 
20

the basis for finding a violation of WARN.” 20 C.F.R. § 639.7(a)(4). Indeed, the notice 

contained a specific email address for employees to send questions, and Fluor amended the 

notice to include the correct telephone number shortly thereafter. See J.A. 4222, 4260–61.

Accordingly, we conclude that Fluor complied with its requirements under the WARN Act, 

and we affirm the district court’s grant of summary judgment to Fluor as well.

We do not discount for a moment the loss and dislocation caused by layoffs and 

plant closings. The WARN Act takes a large step in mitigating those difficulties. The 

scheme constructed by Congress reflects a sensitive balance of the competing interests at 

issue. The trial court was careful to respect that balance, and we in turn are pleased to 

affirm its judgment.

AFFIRMED