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The Ninth Circuit recently addressed the issue of whether an employer is required to provide pay for employees taking short-term military leave when it offers other types of short-term paid leave. In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit revived a class action claiming discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for the failure to pay short-term military leave.

What is USERRA?

USERRA—a federal law applicable to both private and public employers—provides that a service member employee is entitled to the same “rights and benefits” during a military leave as similarly situated employees on non-military leave. Under USERRA , where the benefits of comparable non-military leaves differ, the employer must give the service member “the most favorable treatment” accorded to any comparable non-military leave.Continue Reading Paid Leave For USERRA? We Recommend a Comparability Analysis

As we find ourselves firmly in the middle of Q1 of 2023, the avalanche of layoff headlines that started last quarter just keeps coming. Whether you follow the school of thought that the US entered a recession in summer of 2022 (after two consecutive quarters of negative gross domestic product) or not (given a strong labor market and corporate earnings growth), more and more companies are having to address overzealous pandemic hiring and the backlash from soaring company valuations. One comparatively “easy” place for multinational companies to cut costs — US workforces, where employment is generally “at-will” and absent contractual entitlements or triggering statutory notice requirements, layoffs can be carried out relatively quickly. With that said, as always, moving too quickly can create headaches that actually can be avoided — or at least dulled — with a little planning. 

Here are four tips to keep in mind when planning layoffs in the US:

  1. Beware of the WARN(ings)  

Larger layoffs have the potential of triggering the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) (and analogous state laws, known as state “mini-WARN acts”) statutes. These statutes impose notice and information obligations, which can be tricky to keep track of, and carry potentially heavy penalties for noncompliance.

Federal WARN requires employers to give advanced notice to affected employees in the event of a covered mass layoff or plant closing. Under the WARN, employers must provide 60 days’ notice of termination to the impacted employees, union representatives (if applicable), and certain government authorities. Under some state mini-WARN acts, 90 days’ notice is required. Click here for more on WARN.

  • Tip: WARN should become part of the layoff checklists (again), with teams (re)sensitized to the impact on timing and costs if triggered.

Continue Reading 4 Tips To Avoid (Or At Least Dull) Headaches When Conducting Layoffs In The US

Special thanks to Bradford Newman and Nandu Machiraju.

Employers have been keeping a close watch for rulemaking and action by the Federal Trade Commission (FTC) restricting non-competes. Earlier this month, the FTC answered the Executive Order’s call with enforcement activities and a proposed rule signaling a considerable effort to prioritize employer-employee non-compete covenants as…

Special thanks to Scott McMillen.

Looking Ahead: Exploring the Key Themes and Recommendations for US and Global Employers in 2023

Between maintaining business continuity and keeping your workforce safe, we know there’s been little time to track the rapidly changing employment, compensation and mobility law landscape — in Illinois, across the US, and globally.…

Special thanks to Mark Hamer, Creighton Macy, Nandu Machiraju, Jeffrey Martino, Darley Maw, Kayleigh Golish, Will Woods, Abhishek Dube, Bradford Newman and Nicholas Kennedy.

Over the past week, the Federal Trade Commission (“FTC”) took a major step to expand competition policy deeper into labor markets.

On…

Join us for our webinar series, “2023: Discussion on The New Legal Restructuring Landscape in Europe,” providing an overview of the regulatory and commercial issues to consider when contemplating restructuring across multiple jurisdictions against the backdrop of today’s political and economic climate, both locally and globally.

In our three-part webinar series, UK and…

As we head into 2023, all eyes are on salary and pay range requirements in US job postings — where these laws apply, what they require, and when they come into effect.

In this latest video, our Labor & Employment lawyers explain what employers need to know about US laws requiring salary and pay range…

In our latest Global Immigration and Mobility video chat, Melissa Allchin provides a year-end review of essential immigration and mobility updates for employers. Melissa highlights equal pay transparency laws and the impact on an employer’s obligations under existing immigration law, COVID-related travel considerations, immigration compliance considerations employers should keep top-of-mind with respect to remote or…

Studies show that as many as 98% of CEOs are anticipating a global recession in the next 12-18 months, which means that companies have already started focusing on cutting costs and redistributing resources to best position themselves to survive. One of the largest cost centers on any company’s balance sheet is its workforce. As such, layoffs or other reductions-in-force (RIF) have already started to hit, and will likely continue. What’s different this time around? Because of the ups and downs in the market, and phenomena like the “great resignation” and remote work on a scale never seen before, there is a greater likelihood that more employers will find themselves potentially triggering the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) (and analogous state laws, known as state “mini-WARN acts”) statutes. These statutes impose notice and information obligations, which can be tricky to keep track of, and carry potentially heavy penalties for noncompliance.

What to do?  Employers who see a layoff on the horizon — and even those who may have already undertaken layoffs — should revisit the requirements of WARN (and state mini-WARNs) now, and keep the following “WARN-ings” and practice tips in mind as they work with counsel.

What is WARN and what WARN-ings should companies watch out for?

In short, WARN requires employers to give advanced notice to affected employees in the event of a covered mass layoff or plant closing. Under the federal WARN, employers must provide 60 days’ notice of termination to the impacted employees, union representatives (if applicable), and certain government authorities. Under some state mini-WARN acts, 90 days’ notice is required.

Which employers are covered?

Under the federal WARN Act, covered employers are employers with:

  • 100 or more employees, excluding part-time employees and those with less than 6 months of service in the last 12 months, or
  • 100 or more employees, including part-time employees, who collectively work more than 4,000 hours per week, excluding overtime.

WARN-ing: State mini-WARN acts often have lower thresholds for covered employers.

When is notice required?

Under WARN, covered employers need to provide notice if a triggering event–a “mass layoff” or “plant closing”–occurs.

Mass layoff: A mass layoff is a reduction in force that (i) does not result from a plant closing, and (ii) results in an employment loss at the single site of employment during any 30-day period for:

  • at least 50-499 covered employees if they represent at least 33% of the total active workforce, or
  • 500 or more covered employees.

Plant closing: A plant closing is the permanent or temporary shutdown of a single place of employment or one or more facilities/operating units resulting in an employment loss during a 30-day period for 50 or more covered employees.

How should employers calculate the time frame to determine when WARN notice is required?

WARN always requires aggregating the employment losses that occur over a 30-day period.

WARN also requires aggregation of the employment losses that occur over a 90-day period that did not, on their own, trigger WARN notice, unless the employer can show that the layoffs were the result of separate and distinct causes and are not an attempt to evade WARN.

WARN-ing: Therefore, employers should look ahead and behind 90 days and add up layoffs that have occurred and any planned layoffs to determine whether separate layoffs may trigger notice requirements under WARN.Continue Reading Employer WARN-ing: Layoffs Could Trigger WARN Notice Requirements this Time Around

As we wind up 2022 and head into 2023, all eyes are on salary and pay range requirements in job postings. Where these laws apply, what they require, and when they go into effect has been top-of-mind for US employers in 2022.

Here’s what employers need to know now as they navigate the patchwork of…