Kentucky Employment Lawyer Blog

The Worker Adjustment and Retraining Notification Act (WARN) is a federal law that was passed in 1988 and became effective in 1989. According to the Department of Labor, the act "protects workers, their families, and communities by requiring most employers with 100 or more employees to provide notification 60 calendar days in advance of plant closings and mass layoffs." While this quote gives a general description of what the act does, more information is needed to understand which employers are required to follow the WARN Act and which employees may benefit from its protection.

As the quote says, a company must employ at least 100 workers for the WARN Act to apply. All 100 workers must have been employed by the company for at least six months and average at least 20 work hours per week. For example, a company that employs 65 people year-round and hires another 40 seasonal workers for three months would not be governed by the WARN Act.

Even companies that have 100 qualifying employees may be exempt in certain circumstances. If a company is trying to find investors to help keep the company afloat, and giving a 60-day notice to its employees would hinder this activity, the company may not be required to give the notice. If Mother Nature causes the company to be shut down due to a disaster such as a tornado, hurricane, or flood, the notice is not required because the closure could not be anticipated. In a similar vein, if a company suddenly loses a main source of income because of a cancelled contract or other unforeseeable issue, a 60-day notice may not be possible. In these cases, the companies are still required to provide notice of the layoffs or closure as soon as possible, and they must provide a viable reason why the full 60-day notice could not be given.

The next part of the act to consider is which employees are covered. In general, anyone working for a company that fits the criteria above would be covered, including salaried and hourly employees, managers and supervisors. There are exceptions though. Anyone working for a branch of the government - federal, state, or local - is exempt. Those who have accepted a position knowing it is temporary and those who are hired as self-employed contractors do not qualify. Individuals who are involved in a labor dispute lock-out or who participate in a strike are also not entitled to the 60-day notice.

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In 2003, Gloria Garcia's employment as a school secretary was terminated by the principal of a school in the Mission school district. She had been employed by the school for 17 years and was 48 years old. In a regular story about age discrimination, the next bit of information would be how much younger her replacement was. But this case is unusual in that Ms. Garcia's replacement was actually three years older.

The school district has tried twice to have the case thrown out, partly because they claim schools cannot be sued for discrimination, and partly because age appears to be a non-issue in the firing of Ms. Garcia since her replacement was older. The school appeals took so much time that Ms. Garcia will not get to personally hear the final verdict in the case because she passed away in 2010. But the decision will still be important to other employees who are over 40, including two women who were let go by the same school district.

Ms. Garcia's attorney contends that the school district can definitely be sued for discrimination because it is regulated by individuals elected in to office, it runs on money collected from taxpayers, and it provides a public service. She also explains how an age discrimination claim could be valid when the new employee is older than the one terminated. One scenario would be that the supervisor responsible for the firing did not hire the replacement. So in this case it is possible that the principal had an issue with Ms. Garcia's age and wrongfully terminated her, but it was left up to human resources to find a replacement, which they did. The individual just happened to be older. Another possibility brought up by one of the chief justices reviewing the case is that an attorney for the school district realized they could be in trouble for firing Ms. Garcia based on her age, so he recommended that she be replaced by an older person.

These questions could be answered through depositions and documents, if the school system would stop filing appeals so discovery could continue. Ms. Garcia's attorney admits that if it is proven that the same principal that fired Ms. Garcia also hired her older replacement, then she would most likely no longer have a case. But for now, the questions still remain.

Continue reading "Can You Claim Age Discrimination if Your Replacement is Older than You?" »