Circuit split · employment law

Whether, under the WARN Act's unforeseeable-business-circumstances exception, an employer that gave deficient or no advance notice is fully liable for the entire 60-day period (all-or-nothing) or may reduce its liability by the notice actually provided

1 federal appellate case on this question, each acknowledging the disagreement in its own words.

Roquet v. Arthur Andersen LLP398 F3D 585
Seventh Circuit Court of Appeals · February 9, 2005
“If the all-or-nothing rule is truly being adopted by the majority, it is creating a conflict with the Eighth Circuit, see Burnsides v.” — Creates a split
Empirical analysis of this case →

The provision at issue

29 U.S.C. § 2102 — Notice required before plant closings and mass layoffs

“(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 or entity designated by the State to carry out rapid response activities under section 3174(a)(2)(A) of this title, and the chief elected …”

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The other side of the split

Decisions the acknowledging court(s) named as the opposing or joined side, quoted in the acknowledging opinion's own words.

Discussed · 7th Cir.Pena v. American Meat Packing Corp.362 F.3d 418
“American Meat Packing Corp., 362 F.3d 418 (7th Cir.2004), this court left open the question whether a sufficient unforeseen circumstance occurring within the 60-day window excuses an employer from providing any notice at all, or if instead it merely reduces the amount of notice required.” — Roquet v. Arthur Andersen LLP, acknowledging the split
On the other side · 8th Cir.Burnsides v. MJ Optical, Inc.128 F.3d 700
“If the all-or-nothing rule is truly being adopted by the majority, it is creating a conflict with the Eighth Circuit, see Burnsides v.” — Roquet v. Arthur Andersen LLP, acknowledging the split
On the other side · 3d Cir.Hotel Employees and Rest. Employees Intern. Union Local 54 v. Elsinore Shore Assocs.173 F.3d 175
On the other side · 5th Cir.Halkias v. General Dynamics Corp.137 F.3d 333
“General Dynamics Corp., 137 F.3d 333 , 336 (5th Cir.1998), afforded the employer a week to provide notice once the probability of the mass layoff became foreseeable, it did so only because it accepted that the employer provided as much notice as was practicable.” — Roquet v. Arthur Andersen LLP, acknowledging the split

What the split turns on

Statutes:: 29 U.S.C. § 2102(b)(3)
Doctrines & tests:: unforeseeable business circumstances defense ·; all-or-nothing rule

Cases are grouped by the legal question they announce a split on, classified from the court's own acknowledgment sentence. Verified acknowledgments only. Counter-side decisions are extracted from the acknowledging opinions' own text and linked only when the citation resolves in this corpus. See all circuit splits.