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DOL issues guidance on RIFs and remote employees

The Department of Labor (DOL) recently clarified what effect remote workers have on the application of the federal Worker Adjustment and Retraining Notification Act (the “WARN Act”) and related state regulations.

The guidance addresses when remote workers count in the thresholds for notice under the Act. Given that this is such a growing area, guidance and litigation over remote workers is expected to continue to develop.

WARN Act overview

Generally, the WARN Act, which involves requirements related to reductions in force, applies to employers who have at least 100 full-time workers or 100 full-time and part-time workers who work an aggregate of at least 4,000 hours per week.

The Act comes into play when a company lays off at least 50 full-time workers that make up at least one-third of its full-time workforce at a “single site of employment.”

An employer must provide 60 days’ advance written notice of a worksite closing or mass layoff. Notice must be sent to non-union workers, union representatives, and certain government officials.

Several states also have mini-WARN laws with additional possible requirements, including Maine, Massachusetts, New Hampshire and Vermont.

Remote worker guidance

The new DOL guidance defines a “single site of employment” for remote workers as the location “to which they are assigned as their home base, from which their work is assigned, or to which they report.”

For example, assume a company’s only physical office space is in Boston, with 25 full-time, in-person employees. Then, assume that 100 full-time, remote employees also report to that location, for a total of 125 full-time workers.

If the company reduced its workforce by 45 workers — a number equal to more than one-third of that location’s total full-time workforce, including remote workers — the WARN Act would come into play even though no in-person workers were affected.