The Vermont legislature recently passed the Vermont Notice of Potential Layoffs Act (“NPLA”), which imposes layoff notice-related requirements on a range of Vermont employers in the event of a facility closing or mass layoff. These notice requirements cover a broader range of employers and situations than do the federal Worker Adjustment and Retraining Notification (“WARN”) Act, making it fair to assume that there were perceived gaps in WARN Act coverage as it pertained to Vermont employers and employees.
The NPLA is more broad in concept, applies to employers with fewer employees, and has lower coverage and mass layoff thresholds than does the WARN Act. The NPLA applies to Vermont employers, including governmental employers, that employ: 50 or more full-time employees; 50 or more part-time employees (defined as employees who work at least 1,040 hours); or a combination of 50 or more full-time employees and part-time employees. The law requires that an employer engaging in a closing or mass layoff provide notice to the Vermont Agency of Commerce and Community Development (“VCCD”) and the Vermont Department of Labor (“VDOL”) 45 days prior to the effective date of the layoff. Thirty days’ notice must also be provided to affected employees. In very general terms, a “closing” or “mass lay off” for purposes of the NPLA would involve the permanent employment loss by or the shutting down of a facility employing at least 50 employees, as measured over a 90-day period. An employer may be exempt from the NLPA’s notice requirement if an exception applies.
In contrast, the federal WARN Act generally requires employers with 100 or more employees to provide certain notifications 60 calendar days in advance of plant closings or mass layoffs. In summary terms, a “plant closing” occurs when a covered employer’s closing of a facility affects at least 50 employees (not counting part-time workers) at a single site of employment, while a “mass layoff” occurs when an employer lays off more than 500 full-time workers at a single site of employment during a 30-day period, or lays off 50-499 full-time workers, and these layoffs constitute 33% of the employer’s total active full-time workforce at the single site of employment.
Remember, just because Vermont now has a layoff notice law does not mean that the federal WARN Act does not apply; instead, a Vermont employer large enough to be covered by both laws would have to comply with both laws in circumstances where the notice provisions of both laws are triggered. The NPLA’s penalties make non-compliance costly: an employer that violates the notice requirements is liable to each employee who lost his or her employment for one day of severance pay for each day after the first day in the 45-day notice period, up to a maximum of ten days severance pay, in addition to potentially owing the discharged employee medical or dental coverage. Given the steep penalties and statutory complexities, an employer wondering if it is subject to the NPLA or WARN Act should consult with counsel to untangle the web of requirements