Remote Employees May Bring Class Action for WARN Act Claim

Carissa Davis

In Piron et al. v. General Dynamic Information Technology, Inc., Case 3:19-cv-00709-REP, the United Stated District Court for the Eastern District of Virginia, granted class certification for a Worker Adjustment and Retraining Notification (“WARN”) Act claim brought by remote employees.

The plaintiffs in this case were remote workers who were covered under a Flexible Work Location policy, which stated that “employees may work some or all of the work week in a company-provided office setting, co-located with customers, or from an alternative location (generally the employee’s home).” The employees were required to move from point to point to conduct their work duties, and the company’s expense reports showed frequent reimbursements for travel. Plaintiffs were laid off and filed suit against the company, alleging the company failed to provide the WARN Act notification. Plaintiffs moved for class certification.

The WARN Act requires, among other things, employers to provide at least 60 days’ notice prior to a mass layoff. “Mass layoff” is defined as a reduction in a workforce at a single site of employment that impacts at least 33 percent of the employees and a minimum of 50 employees in a 30-day period.  The WARN Act does not define the term “single site of employment,” but the regulations provide that a single site of employment is “either a single location or a group of contiguous locations.” The regulations further provide that for mobile workers, workers whose primary duties require travel from point to point, such as sales persons, the single site of employment will be their “home base, from which their work is assigned, or to which they report[.]”

The company opposed class certification, arguing that plaintiffs could not establish that common questions of law or fact predominate over any questions affecting only individuals, a requirement for class certification. Specifically, the company argued the plaintiffs were not mobile workers that worked at a single site of employment. The court rejected the company’s argument, holding that Plaintiffs had adequately met the predominance prong by showing that their job duties and place of reporting were similar. The court, however, made clear that the company could still dispute the single site of employment requirement at the summary judgment stage.

The lesson? For many industries, remote work and mass layoffs have been/are ubiquitous in the post-pandemic world. More likely than not, a company has not considered its remote workforce in making prior WARN Act decisions, and the rise of remote workforces may drastically shift the number of employees that could be considered to report to a “single site of employment.” With the changing workforce, and developments in cases like Piron, employers should consult with experienced employment counsel prior to making layoff decisions. Even a well-meaning employer could face costly defense fees, which can be particularly high when defending against a class action.