Title: Fair Warning Act of 2019
Policy area: Labor and Employment

Summary:
Fair Warning Act of 2019
This bill bars an employer from ordering a site closing or mass layoff until 90 calendar days after the employer has served written notice of such an order to (1) each representative of the affected employees as of the time of the notice or each affected employee, (2) the Department of Labor and the governor of the state where the site closing or mass layoff is to occur, and (3) the state or entity designated by the state to carry out rapid response activities.
No notice shall be required if the site closing or mass layoff is because of any natural disaster, such as a flood, earthquake, or a drought ravaging the farmlands of the United States.
Labor shall maintain a guide of benefits and services that may be available to affected employees, including unemployment compensation, trade adjustment assistance, COBRA continuation coverage, and early access to training services and other services, including counseling services.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2938 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                S. 2938

   To amend the Worker Adjustment and Retraining Notification Act to 
 support workers who are subject to an employment loss, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 21, 2019

 Mr. Brown (for himself, Mr. Schumer, and Mrs. Murray) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
   To amend the Worker Adjustment and Retraining Notification Act to 
 support workers who are subject to an employment loss, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fair Warning Act of 2019''.

SEC. 2. DEFINITIONS; PROVISION OF NOTICE OF SITE CLOSINGS AND MASS 
              LAYOFFS.

    (a) WARN Act Amendments.--Sections 2 and 3 of the Worker Adjustment 
and Retraining Notification Act (29 U.S.C. 2101; 2102) are amended to 
read as follows:

``SEC. 2. DEFINITIONS; EXCLUSIONS FROM DEFINITION OF LOSS OF 
              EMPLOYMENT.

    ``(a) Definitions.--As used in this Act:
            ``(1) Affected employee.--The term `affected employee' 
        means a full-time or part-time employee who may reasonably be 
        expected to experience an employment loss as a consequence of a 
        proposed site closing or mass layoff by the employee's 
        employer.
            ``(2) Employer.--
                    ``(A) In general.--The term `employer' means any 
                business enterprise that--
                            ``(i) employs 50 or more employees, 
                        including part-time employees and including 
                        employees of the nominal employer and any 
                        entity that is the nominal employer's direct or 
                        indirect parent or is integrated with the 
                        nominal employer; or
                            ``(ii) has an annual payroll of at least 
                        $2,000,000.
                    ``(B) Definitions.--For the purposes of this 
                paragraph:
                            ``(i) Integrated.--The term `integrated', 
                        when used with respect to a business 
                        enterprise, means an entity whose relationship 
                        with another business enterprise include--
                                    ``(I) common ownership;
                                    ``(II) common directors or 
                                officers;
                                    ``(III) de facto exercise of 
                                control;
                                    ``(IV) unity of personnel policies 
                                emanating from a common source; or
                                    ``(V) dependency of operations.
                            ``(ii) Parent.--The term `parent' means an 
                        entity, regardless of its financial interest in 
                        the nominal employer, that participates 
                        directly or indirectly in making decisions that 
                        affect the employees of the nominal employer or 
                        of multiple entities controlled by 1 person for 
                        a common business purpose.
                            ``(iii) Consideration.--In determining 
                        whether an entity is integrated with or a 
                        direct or indirect parent of a business 
                        enterprise that is the nominal employer, 
                        substantial weight shall be given to any 
                        decision-making responsibility the entity had 
                        for the practice that gave rise to the 
                        violation of this Act.
            ``(3) Employment loss.--Subject to subsection (b), the term 
        `employment loss' means--
                    ``(A) an employment termination, other than a 
                discharge for cause, voluntary departure, or 
                retirement;
                    ``(B) a layoff exceeding 3 months; or
                    ``(C) a reduction in hours of work of more than 50 
                percent during each month of any 3-month period.
            ``(4) Mass layoff.--
                    ``(A) In general.--The term `mass layoff' means a 
                reduction in force that results in an employment loss 
                during any 90-day period--
                            ``(i) for 10 or more employees of an 
                        employer at a single site of employment, as 
                        calculated under subparagraph (B); or
                            ``(ii) for 250 or more employees of an 
                        employer, irrespective of employment site.
                    ``(B) Calculation.--The number of employees at a 
                single site who suffer an employment loss shall be 
                calculated in a manner that includes--
                            ``(i) all such employees who work at the 
                        physical location of the site; and
                            ``(ii) all such employees who work remotely 
                        and--
                                    ``(I) are assigned to or otherwise 
                                associated with the site;
                                    ``(II) receive assignments or 
                                training from the site;
                                    ``(III) report to a manager 
                                associated with the site; or
                                    ``(IV) whose job loss was a 
                                foreseeable consequence of a reduction 
                                in force at the site.
            ``(5) Representative.--The term `representative' means an 
        exclusive representative of employees within the meaning of 
        section 8(f) or 9(a) of the National Labor Relations Act (29 
        U.S.C. 158(f); 159(a)) or section 2 of the Railway Labor Act 
        (45 U.S.C. 152).
            ``(6) Secretary.--The term `Secretary' means the Secretary 
        of Labor.
            ``(7) Site closing.--The term `site closing' means the 
        permanent or temporary shutdown of a single site of employment, 
        or one or more facilities or operating units within a single 
        site of employment, that results in an employment loss at the 
        single site of employment during any 30-day period for 5 or 
        more employees, calculated in the same manner as described in 
        paragraph (4)(B).
            ``(8) Unit of local government.--The term `unit of local 
        government' means any general purpose political subdivision of 
        a State which has the power to levy taxes and spend funds, as 
        well as general corporate and police powers.
    ``(b) Exclusions From Employment Loss Due to a Site Closing or Mass 
Layoff.--An employee shall not be considered to have experienced an 
employment loss due to a site closing or mass layoff if the site 
closing or mass layoff is the result of the relocation or consolidation 
of part or all of the employer's business and, prior to the site 
closing or mass layoff--
            ``(1) the employer offers to transfer the employee to a 
        different site of employment within a reasonable commuting 
        distance with no more than a 3-month break in employment; or
            ``(2) the employer offers to transfer the employee to any 
        other site of employment regardless of distance with no more 
        than a 3-month break in employment, and the employee accepts 
        within 30 days of the offer or of the site closing or mass 
        layoff, whichever is later.

``SEC. 3. NOTICE REQUIRED BEFORE SITE CLOSINGS AND MASS LAYOFFS.

    ``(a) Notice to Employees, State Dislocated Worker Units, and Local 
Governments.--An employer shall not order a site closing or mass layoff 
until 90 calendar days after the date on which the employer has served 
written notice of such an order to--
            ``(1)(A) each representative of the affected employees as 
        of the time of the notice; or
            ``(B) each affected employee;
            ``(2) the Secretary and the Governor of the State where the 
        site closing or mass layoff is to occur; and
            ``(3) the State or entity designated by the State to carry 
        out rapid response activities under section 134(a)(2)(A) of the 
        Workforce Innovation and Opportunity Act (29 U.S.C. 
        3174(a)(2)(A)).
    ``(b) Duties Upon Receipt of Notice.--A State or designated entity 
that receives a notice under subsection (a)(3) shall--
            ``(1) make the information in the notice publicly available 
        within the jurisdiction of the local government involved;
            ``(2) transmit a copy of the notice to each affected local 
        area (as defined in section 3 of the Workforce Innovation and 
        Opportunity Act (29 U.S.C. 3102)), so that the information in 
        the notice can be distributed through activities under section 
        134(c)(2)(A)(iv)(I)(aa) of that Act (29 U.S.C. 
        3174(c)(2)(A)(iv)(I)(aa)); and
            ``(3) ensure that--
                    ``(A) an appropriate labor-management committee 
                described in section 3(51)(C) of the Workforce 
                Innovation and Opportunity Act (29 U.S.C. 3102(51)(C)) 
                has been established or is established not later than 
                20 days after receipt of the notice; and
                    ``(B) an individual is designated, by not later 
                than 20 days after receipt of such notice, to 
                coordinate rapid response activities described in 
                section 134(a)(2)(A)(i) of such Act, in consultation 
                with the labor-management committee.
    ``(c) Reduction of Notification Period.--
            ``(1) Potential new business or financing.--An employer may 
        order the site closing of a single site of employment before 
        the conclusion of the 90-day period described in subsection (a) 
        if--
                    ``(A) as of the date that notice would have been 
                required the employer had been offered, on acceptable 
                terms, new business or financing in an amount which, if 
                obtained, would have enabled the employer to avoid the 
                site closing; and
                    ``(B) the employer can demonstrate that, had notice 
                been given, the notice would have precluded the new 
                business or financing.
            ``(2) Unforeseen circumstances.--
                    ``(A) Natural disasters.--No notice under this Act 
                shall be required if the site closing or mass layoff is 
                due to any form of natural disaster, such as a flood, 
                earthquake, or a drought ravaging the farmlands of the 
                United States.
                    ``(B) Terrorist attacks.--No notice under this Act 
                shall be required if the site closing or mass layoff is 
                due directly to a terrorist attack that affects the 
                operation of the site.
            ``(3) Provision of notice.--An employer relying on this 
        subsection shall give as much notice as is practicable and at 
        that time shall give a brief statement of the basis for 
        reducing the notification period.
    ``(d) Extension of Temporary Layoff.--A temporary layoff of more 
than 3 months that, at its outset, was announced to be a temporary 
layoff of 3 months or less, shall be treated as an employment loss 
under this Act unless--
            ``(1) a written notice, as required under subsection (a), 
        is provided at the commencement of the temporary layoff stating 
        the date on which the employer expects to recall the employees 
        to work, and such date is less than 3 months after the date of 
        the layoff; and
            ``(2) notice is given to all parties described in 
        subsection (a) at the time it becomes reasonable to contemplate 
        that the temporary layoff will be extended beyond the 90-day 
        period.
    ``(e) Determinations With Respect to Employment Loss.--
            ``(1) Multiple groups.--For purposes of this section, in 
        determining whether a site closing or mass layoff at a single 
        site of employment has occurred or will occur, employment 
        losses for 2 or more groups at the single site of employment, 
        each of which is less than the minimum number of employees 
        specified in paragraph (4) or (7) of section 2(a) but which in 
        the aggregate exceed that minimum number, and which occur 
        within any 90-day period, shall be considered to be a site 
        closing or mass layoff unless the employer demonstrates that 
        the employment losses are the result of separate and distinct 
        actions and causes and are not an attempt by the employer to 
        evade the requirements of this Act.
            ``(2) Treatment of business sales.--
                    ``(A) In general.--In the case of a sale of part or 
                all of an employer's business, the seller shall be 
                responsible for providing notice for any site closing 
                or mass layoff in accordance with this section up to 
                and including the effective date of the sale. After the 
                effective date of the sale of part or all of an 
                employer's business, the purchaser shall be responsible 
                for providing notice for any site closing or mass 
                layoff in accordance with this section.
                    ``(B) Transfer of employees.--In the case of a sale 
                of part or all of an employer's business, and 
                notwithstanding any other provision of this Act, any 
                person who is an employee of the seller as of the 
                effective date of the sale shall be considered an 
                employee of the purchaser immediately after the 
                effective date of the sale.
    ``(f) Content of Notices.--An employer who is required to provide 
notice as required under subsection (a) shall include--
            ``(1) in each notice required under such subsection--
                    ``(A) a statement of the number of affected 
                employees;
                    ``(B) the reason for the site closing or mass 
                layoff;
                    ``(C) whether the layoff is permanent or temporary 
                and, if temporary, the date on which the employer 
                expects to recall the affected employees to work;
                    ``(D) the availability of employment at other 
                establishments owned by the employer;
                    ``(E) a statement of each employee's rights with 
                respect to wages and severance and employee benefits; 
                and
                    ``(F) a statement of the available employment and 
                training services provided by the Department of Labor; 
                and
            ``(2) in each notice required under such subsection (except 
        for paragraph (1)(B) of such subsection), the names, addresses, 
        and occupations of the affected employees.
    ``(g) Information Regarding Benefits and Services Available to 
Employees.--Concurrent with or immediately after providing the notice 
required under subsection (a)(1), an employer shall provide affected 
employees with information regarding the benefits and services 
available to such employees, as described in the guide compiled by the 
Secretary under section 13.
    ``(h) Access of Rapid Response Teams.--An employer who is required 
to provide notice under subsection (a) shall permit, during work hours, 
reasonable on-site access to any Federal, State, or local rapid 
response team under section 134(a)(2)(A) of the Workforce Innovation 
and Opportunity Act (29 U.S.C. 3174(a)(2)(A)) responsible for providing 
reemployment, training services, and related services to affected 
employees.
    ``(i) DOL Notice to Congress.--As soon as practicable and not later 
than 15 days after receiving notice under subsection (a)(2), the 
Secretary of Labor shall notify the appropriate Senators and Members of 
the House of Representatives who represent the area or areas where the 
site closing or mass layoff is to occur.''.
    (b) WIOA Amendment Regarding the Provision Information Through 
Local Employment and Training Activities.--Section 
134(c)(2)(A)(iv)(I)(aa) of the Workforce Innovation and Opportunity Act 
(29 U.S.C. 3174(c)(2)(A)(iv)(I)(aa)) is amended by inserting before the 
semicolon the following: ``and of information in notices described in 
section 3(a), and of access to the database established under section 
5(e), of the Worker Adjustment and Retraining Notification Act (29 
U.S.C. 2102(a); 2104(e))''.

SEC. 3. EXEMPTIONS.

    Section 4 of the Worker Adjustment and Retraining Notification Act 
(29 U.S.C. 2103) is amended to read as follows:

``SEC. 4. EXEMPTIONS.

    ``This Act shall not apply to a plant closing or mass layoff if the 
closing is of a temporary facility or the closing or layoff is the 
result of the completion of a particular project or undertaking, and 
the affected employees were hired with the understanding that their 
employment was limited to the duration of the facility or the project 
or undertaking.''.

SEC. 4. ADMINISTRATION AND ENFORCEMENT OF REQUIREMENTS.

    Section 5 of the Worker Adjustment and Retraining Notification Act 
(29 U.S.C. 2104) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1)--
                            (i) in subparagraph (A)--
                                    (I) in the matter preceding clause 
                                (i), by striking ``each day'' and 
                                inserting ``each calendar day''; and
                                    (II) in clause (ii), by striking 
                                ``and'' after the semicolon;
                            (ii) in subparagraph (B), by striking the 
                        period at the end and inserting ``; and'';
                            (iii) by inserting after subparagraph (B) 
                        the following:
            ``(C) liquidated damages in an amount equal to 30 days of 
        back pay, at the rate of compensation calculated under 
        subparagraph (A).''; and
                            (iv) in the flush text following 
                        subparagraph (C) (as added by clause (iii)), by 
                        striking ``60 days'' and inserting ``90 days'';
                    (B) in paragraph (2)(A), by inserting ``, which 
                begins on the date of the employment loss'' after ``the 
                violation'';
                    (C) in paragraph (3), by inserting ``the Secretary, 
                a State, or'' before ``a unit of local government'';
                    (D) in paragraph (4)--
                            (i) by striking ``which has violated this 
                        Act'' and inserting ``that has violated the 
                        provisions of section 3 with respect to the 
                        Secretary, a State, or a local government''; 
                        and
                            (ii) by striking ``reduce the amount of the 
                        liability or penalty provided for in this 
                        section'' and inserting ``reduce the amount of 
                        the penalty under paragraph (3)'';
                    (E) by striking paragraph (5) and inserting the 
                following:
            ``(5) A person (including a representative of employees or 
        a unit of local government aggrieved under paragraph (1) or 
        (3)) seeking to enforce the liability provided for in this 
        section, may, either for such person, for other persons 
        similarly situated, or for both, bring suit in any district 
        court of the United States for any district in which the 
        violation is alleged to have occurred or in which the employer 
        transacts business.''; and
                    (F) in paragraph (6), by striking ``prevailing 
                party'' and inserting ``prevailing plaintiff'';
            (2) by redesignating subsection (b) as subsection (c);
            (3) by inserting after subsection (a) the following:
    ``(b) Limitations.--An action shall be brought under this section 
not later than 4 years after the date of the last event constituting 
the alleged violation for which the action is brought.''; and
            (4) by adding at the end the following:
    ``(d) Exemption From Liquidated Damages.--Notwithstanding 
subsection (a)(1)(C), an employer is not liable for the liquidated 
damages described in such subsection if--
            ``(1) the employee alleges a site closing and--
                    ``(A) the employer can establish that circumstances 
                described in section 3(c)(1) existed on the 60th and 
                30th days before the site closing; or
                    ``(B) the site closing is due to any form of 
                natural disaster or directly due to a terrorist attack; 
                or
            ``(2) the alleged site closing or mass layoff is caused by 
        business circumstances (other than a financier's decision) that 
        were not contemplated nor should reasonably have been 
        contemplated as of the 30th day before the site closing or mass 
        layoff.
    ``(e) Database.--
            ``(1) Transmittals.--A State or designated entity that 
        receives a notice under section 3(a) shall transmit a copy of 
        the notice to the Secretary.
            ``(2) Database.--The Secretary shall create and maintain a 
        publicly available database that provides information from 
        notices transmitted under paragraph (1).
            ``(3) Contents of database.--The database under paragraph 
        (2) shall include--
                    ``(A) for each notice transmitted under paragraph 
                (1), a copy of the notice, the date of the notice, the 
                name of the employer involved, the unit of local 
                government affected by the closing or layoff involved, 
                the number of employees so affected, the sector in 
                which the layoff occurred (as identified by the North 
                American Industry Classification System code), and the 
                type of the closing or layoff;
                    ``(B) a search function that allows users to 
                identify the geographic, annual, and sectoral breakdown 
                of the notices; and
                    ``(C) a function that allows the data to be 
                downloaded in a user-friendly format.
            ``(4) Access through website.--The Secretary shall provide 
        a link to the database through the Internet website of the 
        Department of Labor.''.

SEC. 5. POSTING OF NOTICES.

    Section 11 of the Worker Adjustment and Retraining Notification Act 
(29 U.S.C. 2101 note) is amended to read as follows:

``SEC. 11. POSTING OF NOTICES.

    ``(a) Posting of Notices.--Each employer shall post and keep 
posted, in conspicuous places upon its premises where notices to 
employees are customarily posted, a notice to be prepared or approved 
by the Secretary setting forth excerpts from, or summaries of, the 
pertinent provisions of this Act and information pertinent to the 
filing of a complaint under this Act.
    ``(b) Penalties.--The Secretary may impose a civil penalty on any 
person who willfully violates this section of not more than $500 for 
each separate offense.''.

SEC. 6. NON-WAIVER OF RIGHTS AND REMEDIES; INFORMATION REGARDING 
              BENEFITS AND SERVICES AVAILABLE TO EMPLOYEES.

    The Worker Adjustment and Retraining Notification Act (29 U.S.C. 
2101 et seq.) is further amended by adding at the end the following:

``SEC. 12. RIGHTS AND REMEDIES NOT SUBJECT TO WAIVER.

    ``(a) In General.--The rights and remedies provided under this Act 
(including the right to file or participate in a class action under 
rule 23 of the Federal Rules of Civil Procedure in Federal court) are 
substantive and may not be waived, deferred, or lost pursuant to any 
agreement or settlement other than an agreement or settlement described 
in subsection (b).
    ``(b) Agreement or Settlement.--An agreement or settlement referred 
to in subsection (a) is an agreement or settlement negotiated by--
            ``(1) a private attorney on behalf of affected employees; 
        or
            ``(2) a designated representative of affected employees 
        under the National Labor Relations Act (29 U.S.C. 151 et seq.) 
        or the Railway Labor Act (45 U.S.C. 151 et seq.).

``SEC. 13. INFORMATION REGARDING BENEFITS AND SERVICES AVAILABLE TO 
              WORKERS.

    ``(a) In General.--The Secretary of Labor shall maintain a guide of 
benefits and services that may be available to affected employees, 
including unemployment compensation, trade adjustment assistance, COBRA 
continuation coverage, and early access to training services and other 
services, including counseling services, available under title I of the 
Workforce Innovation and Opportunity Act (29 U.S.C. 3111 et seq.).
    ``(b) Availability of Guide.--The guide maintained under subsection 
(a) shall be available on the Internet website of the Department of 
Labor and shall include a description of the benefits and services, the 
eligibility requirements, and the means of obtaining such benefits and 
services.
    ``(c) Transmission to Employers.--Upon receiving notice from an 
employer under section 3(a)(2), the Secretary shall immediately 
transmit such guide to such employer.''.
                                 <all>