Did Twitter’s recent layoffs violate federal employment AND labor law?

It depends on who you ask. According to the plaintiffs and their counsel in this recently filed first amended complaint, the social media giant violated the federal Worker Adjustment and Retraining Notification Act (WARN). One of the plaintiffs upped the ante with a separate unfair labor practice charge, which he filed at the National Labor Relations Board. He claims that Twitter violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by laying him off in retaliation for concerted protected activity.

So, let’s talk about these two federal workplace laws.

WARN

WARN is a federal law that generally requires employers with 100 or more employees (generally not counting those who have worked less than six months in the last 12 months and those who work an average of fewer than 20 hours a week) to provide at least 60 calendar days advance written notice of a plant closing and mass layoff affecting 50 or more employees at a single site of employment.

An employer that violates the WARN Act notice requirement is liable to each affected employee for an amount equal to back pay and benefits for the period of violation up to 60 days.

There are exceptions due to unforeseeable business circumstances. We saw businesses attempt to apply this exception in 2020 due to COVID. There are also exceptions for faltering companies and natural disasters.

There is also a workaround to advance notice. An employer can pay workers for 60 calendar days instead of giving them 60 days’ notice. Technically, that’s still a WARN violation. (And your mileage may vary under state and local versions of WARN.) However, providing pay and benefits in place of a notice is a viable option because WARN allows employers to make voluntary payments of wages and benefits and offset them against any WARN damages.

The plaintiffs allege Twitter engaged in a mass layoff and did not provide 60 days advance written notice (or any advance notice at all) to at least one of the plaintiffs regarding his layoff. Nor did Twitter offer to pay them in place of the notice.

But what about a severance package? Could that replace the 60-day notice period?

A voluntary severance package may offset WARN, effectively providing pay instead of notice. But it must be “voluntary and unconditional” payments, i.e., the employer can’t be other legally obligated to provide it. For example, contractually required payments, such as an employer’s personnel policies or under state law, would not offset WARN damages and, thus, would not reduce the employer’s liability.

The plaintiffs here claim that Twitter promised that if it laid employees off following the merger, employees would receive
benefits and severance at least as favorable as the benefits and severance that Twitter previously provided to employees.

Remember that these are just the allegations in the first amended complaint, and Twitter has yet to respond in court.

And since this post is getting a bit long, we’ll explore the labor law allegations against Twitter tomorrow.