Business Assistant/Business Assistant.iso/legal/gde757_3/lharc3.exe/PLANT.STA

Text File | 1993-01-06 | 14.4 KB | 323 lines

/* The famous "Plant Closing Act" follows in full text. It is
officially known as the "Worker Adjustment and Retraining
Notification Act, and is found at 29 United States Code 2101. */

Section 2101. Definitions, exclusions from definition of loss of
employment

/* In this section the minimum size of employers and minimum
length of service are described. */

     (a) Definitions. As used in this Act--

          (1) the term "employer" means any business enterprise
that employs--

               (A) 100 or more employees, excluding part-time
employees; or

               (B) 100 or more employees who in the aggregate
work at least 4,000 hours per week (exclusive of hours of
overtime);

/* Next the act also defines a plant closing or mass layoff. */

          (2) the term "plant closing" means the permanent or
temporary shutdown of a single site of employment, or one of more
facilities or operating units within a single site of employment,
if the shutdown of a single site of employment, or one or more
facilities or operating units within a single site of employment,
of the shutdown results in an employment loss at the single site
of employment during any 30 day period for 50 or more employees
excluding any part-time employees;

          (3) the term "mass layoff" means a reduction in force
which--

     (A) is not the result of a plant closing; and

     (B) results in an employment loss at the single site of
employment during any 30 day period for--

          (i)(I) at least 33 percent of the employees (excluding
any part-time employees); or

          (ii) at least 500 employees (excluding any part-time
employees);

     (4) the term "representative" means an exclusive bargaining
representative of employees within the meaning of section 9(a) or
8(f) of the National Labor Relations Act, or section 2 of the
Railway Labor Act;

     (5) the term "affected employees: means employees who may be
reasonably expected to experience an employment loss as a
consequence of a proposed plant closing or mass layoff by their
employer;

     (6) 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
6 months or (C) a reduction in hours of work of more than 50 per
cent during each month of any 6-month period;

     (7) 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; and

     (8) the term "part-time employee" means 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 a notice is required.

     (b) Exclusions from definition of employment loss. (1) In
the case of a sale of part or all of an employer's business, the
seller shall be responsible for providing notice of any plant
closing or mass layoff in accordance with section 3 of this Act,
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
of any plant closing or mass layoff in accordance with section 3
of this Act. Notwithstanding any other provisions of this Act,
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
considered an employee of the purchaser immediately after the
effective date of the sale.

     (2) Notwithstanding subsection (a)(6) an employee may not be
considered to have considered to have experienced an employment
loss if the closing or layoff is the result of the relocation or
consolidation of part or all of the employer's business and,
prior to the closing or layoff--

               (A) the employer offers to transfer the employee
to a different site of employment within a reasonable commuting
distance with no more than a 6-month break in employment; or

               (B) the employer offers to transfer the employee
to any other site of employment regardless of distance with no
more than a 6-month break in employment, and the employee accepts
within 30 days of the offer or the closing of the plant,
whichever is later.

Section 2102. Notice required before plant closing and mass
layoffs

/* Here is the general rule regarding the 60 day notice
that must be given before a plant closing- but watch out--
there are many exceptions. */

(a) Notice to employees, state dislocated worker units, and local
governments. An 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--

     (1) to each representative of the affected employees as of
the time of the notice or, if there is no such representative at
that time, to each affected employee; and

     (2) to the State dislocated worker unit and the chief
elected official of the unit of local government within which the
determination is made.

(b) Reduction of notification period. (1) An employer may order
the shutdown of a single site of employment before the conclusion
of the 60-day period if as of the time that notice would have
been required the employer was actively seeking capital or
business, which, if obtained, would have enabled the employer to
avoid or postpone the shutdown and the employer reasonably and in
good faith believed that giving the notice would have precluded
the employer from obtaining the needed capital or business.

     (2)(A) An employer may order a plant closing or mass layoff
before the conclusion of the 60-day period if 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.

     (B) No notice under this Act shall be required if the plant
closing or mass layoff is due to any form of natural disaster,
such as a flood, earthquake, or the drought currently ravaging
the farmlands of the United States.

     (3) 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 notice period.

(c) Extension of layoff period. A layoff of more than 6 months
which, at its outset, was announced to be a layoff of 6 months or
less, shall be treated as an employment loss under this Act
unless--

     (1) the extension beyond 6 months is caused by business
circumstances (including unforeseeable changes in price or cost)
not reasonable foreseeable at the time of the initial layoff; and

     (2) notice is given at the time it becomes reasonably
foreseeable that the extension beyond 6 months will be required.

(d) Determination with respect to employment loss. For purposes
of this section, in determining whether a plant closing or mass
layoff has occurred or will occur, employment losses for 2 or
more groups at a single site of employment, each of which is less
than the minimum number of employees specified in section 2(a)(2)
or (3) [section 29 USC 2101(a)(2) or (3)] but which in the
aggregate exceed that minimum or mass layoff unless the employer
demonstrates that the employment losses are the result of
separate and distinct action and causes and are not an attempt
by the employer to evade to evade the requirements of this Act.

Section 2103. Exemption.

This Act shall not apply to a plant closing or mass layoff if--

     (1) 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
or the facility or project or undertaking; or

     (2) the closing or layoff constitutes a strike or
constitutes a lockout not intended to evade the requirements of
this Act. Nothing in this Act shall require an employer to serve
written notice pursuant to section 3(a) of this act [29 USC
2102(a)] when permanently replacing a person who is deemed to be
an economic striker under the National Labor Relations Act:
Provided, That nothing in this Act shall be deemed to validate or
invalidate any judicial or administrative ruling relating to the
hiring of permanent replacements for economic strikers under the
National Labor Relations Act.

Section 2104. Administration and enforcement of requirements

/* Here are the penalties (both $ 500 a day and back pay) and
the various ways that an employer can seek to get around the
penalties. */

(a) Civil actions against employers. (1) Any employer who orders
a plant closing or mass layoff in violation of section 3 of this
Act shall be liable to each aggrieved employee who suffers an
employment loss as a result of such closing or layoff for--

     (A) back pay for each day of violation at a rate of
compensation not less than the higher of--

          (i) the average regular rate received by such employee
during the last 3 years of the employee's employment; or

          (ii) the final regular rate received by such employee;
and

     (B) benefits under an employee benefit plan described in
section 3(3) of the Employee Retirement Income Security Act of
1974, including the cost of medical expenses incurred during the
employment loss which would have been covered under an employee
benefit plan if the employment loss had not occurred.

Such liability shall be calculated for the period of violation,
up to a maximum of 60 days, but in no event for more than one-
half the number of day the employee was employed by the employer.

(2) The amount for which an employer is liable under paragraph
(1) shall be reduced by--

    (A) any wages paid by the employer to the employee for the
period of the violation;

    (B) any voluntary and unconditional payment by the employer
to the employee that is not required by any legal obligation; and

    (C) any payment by the employer to a third party or trustee
(such as premiums for health benefits and payments to a defined
contribution pension plan) on behalf of and attributable to the
employee for the period of the violation.

In addition, any liability incurred under paragraph (1) with
respect to a defined benefit pension plan may be reduced by
crediting the employee with service for all purposes under such
a plan for the period of the violation.

    (3) any employer who violations the provisions of section 3
with respect to a unit of local government shall be subject to a
civil penalty of not more than $ 5000 for each day of such
violation, except that such penalty shall not apply if the
employer pays to each aggrieved employee the amount for which the
employer is liable within 3 weeks from the date the employer
orders the shutdown or layoff.

    (4) If an employer which has violated this Act proves to the
satisfaction of the court that the act or omission that violated
this Act was in good faith and that the employer had reasonable
grounds for believing that the act or omission was not a
violation of this Act the court may, in its discretion, reduce
the amount of the liability or penalty provided for in this
section.

    (5) A person seeking to enforce such liability, including a
representative of employees or a unit of local government
aggrieved under paragraph (1) or (3), may either sue for such
person  or for other persons similarly situated, or both, 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.

    (6) In any such suit, the court, in its discretion, may allow
the prevailing party a reasonable attorney's fee as a part of its
costs.

    (7) For the purposes of this subsection, the term, "aggrieved
employee" means an employee who has worked for the employer order
the plant closing or mass layoff, and who, as a result of the
failure by the employer to comply with section 3, did not receive
timely notice either directly or through his or her
representative as required by section 3.

(b) Exclusivity of remedies. The remedies provided for in this
section shall be the exclusive remedies for any violation of this
Act. Under this Act, a Federal Court shall not have the authority
to enjoin a plant closing.

Section 2105. Procedures in addition to other rights of employees

The rights and remedies provided to employees by this Act are in
addition to, and not in lieu of, any other contractual or
statutory rights and remedies of the employees, and are not
intended to alter or affect such rights and remedies, except that
the period of notification required by this Act shall run
concurrently with any period of notification required by contact
or by any other statute.

Section 2106. Procedures encouraged where not required.

It is the sense of Congress that an employer who is not required
to comply with the notice requirements of section 3 [29 USC 2102]
should, to the extent possible, provide notice to its employees
about a proposal to close a plant or permanently reduce its
workforce.

Section 2107. Authority to prescribe regulations.

    (a) The Secretary shall prescribe such regulations as may be
necessary to carry out this Act. Such regulations, at a minimum,
include interpretive regulations describing the methods by which
employers may provide for appropriate service of notice as
required by this Act.

Section 2008. Effect on other laws.

The giving of notice pursuant to this Act, if done in good faith
compliance with this Act, shall not constitute a violation of the
National Labor Relations Act or the Railway Labor Act.

Section 2109. Report on employment and international
competitiveness.

Two years after the date of enactment of this Act [8/4/88] the
Comptroller General shall submit to the Committee on Small
Business of both the House and Senate, the Committee on Labor and
Human Resources, and the Committee on Education and Labor a
report containing a detailed and objective analysis of the of the
effect of this Act on employers (especially small and medium-
sized businesses), the economy (international competitiveness)
and employees (in terms of levels and conditions of employment.)