Q: I likely have to lay off a significant portion of my staff (500 employees), but we are still working with pre-pandemic orders. I need to keep at least some of the staff on until those are finished. Can I avoid providing WARN notices if I make the layoffs in waves – for instance, laying off 100 employees in August, 100 employees in September and 300 employees in October?
A: No. You are not able to avoid notice in this circumstance; although, if the layoff is for demonstrably different reasons, more spacing of a layoff may be possible without triggering the WARN Act. In determining whether notice is required in this scenario, in which all the employment loss is occurring because of a graduated layoff, you are required to look ahead and back 90 days to determine whether the planned and completed employment losses would trigger WARN. Here, when terminating the 100 employees in August, you must look ahead 90 days to October to determine whether your planned layoff, if aggregated, would add up to 500 employees (or at least 50 employees, if that number is one-third of the workforce). In this case, all the terminations would be subject to WARN notice because of the 90-day aggregate rule.