II 116th CONGRESS 1st Session S. 2938 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.

1. Short title This Act may be cited as the Fair Warning Act of 2019 . 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: 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. 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)) . 3. Exemptions Section 4 of the Worker Adjustment and Retraining Notification Act ( 29 U.S.C. 2103 ) is amended to read as follows: 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. . 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. . 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: 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. . 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: 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.). 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. .