The Obama administration is continuing to encourage employers to ignore the WARN Act, which would require them to inform employees before the presidential election that they may face layoffs due to sequestration. But a former counsel for the National Labor Relations Board and one of the crafters of the WARN Act is warning employers that they would open themselves up to worker lawsuits by ignoring the law. HuffPo reports:
But John Irving, a former National Labor Relations Board counsel who helped shape some provisions of the WARN Act, said he would tell major defense contractors to think twice about disregarding the WARN Act.
It is unlikely that the DOL guidance would hold up in court if a terminated worker sued his employer for not giving proper notice, Irving said.
In other words, defense contractors cannot fall back on the Department of Labor memo if the federal government lurches off the fiscal cliff and a laid-off employee had not received a pink slip by early November.
“It strikes me that the guidance is so far off the mark that you wonder why it’s being issued, and it’s not a regulation — it’s a sort of statement of opinion, which is coming out because of what could be the consequence,” Irving said. “It’s trying to blunt that and head it off in a way makes it look like no notice is not necessary when it may be.”
Obama’s Department of Labor must realize it’s asking defense contractors to put themselves at legal risk by asking them to ignore the law. The DOL doesn’t enforce the WARN Act; it’s enforced solely through legal challenges by employees. President Obama knows this all too well, since he personally supported stricter federal enforcement mechanisms for the WARN Act during his time in the senate.
If defense contractors don’t give 60 days notice of layoffs and sequestration kicks in as planned on Jan. 2 — not an unlikely scenario, since congress’s track record on compromising on these issues isn’t great — then employers could be hit with mass lawsuits. Tort attorneys must be salivating at the prospect.
And yet the White House isn’t backing down from the DOL’s recommendation. At a hearing before the House Armed Services Committee yesterday, White House budget chief Jeffrey Zients claimed that sending out notices would be a “waste of taxpayer resources” and cause “unnecessary uncertainty”:
Appearing before the House Armed Services Committee, White House budget chief Jeffrey Zients defended recent guidance from the Department of Labor that advises firms against sending out layoff notices as the so-called “fiscal cliff” nears. The 23-year-old WARN Act requires some employers to send out pink slips 60 days ahead of a “reasonably foreseeable” event — in this case, massive spending cuts to defense and domestic programs triggered by the failure of the budget “super committee” last fall. …
“These potential plant closings or layoffs are speculative and unforeseeable, so to give blanket notices both wastes taxpayer resources and creates unnecessary uncertainty,” Zients responded. “So clearly the companies that you just talked about need to absorb this guidance from the Department of Labor, which is very clear, and they need to make their own decisions.”
Funny, the Obama administration hasn’t seemed overly concerned with “wasting taxpayer resources” in the past. And the idea that sending out paper or electronic notices of potential layoffs would be a major drain on taxpayers is laughable.
Exactly how is a private company sending notices to its PRIVATE employees a use of Taxpayer Resources? Forget if it is necessary or not, exactly how does this become a public expense? n nIt comes out of the general revenue and expenses of General Dynamics or Boeing or whomever — and (to the extent measurable) becomes a fraction of a penny less paid in shareholder divieends. n nTeam NoBama is so rattled that they aren't even making sense anymore….
Actually, taken to its logical extreme, one could argue that the DOL telling private companies not to send WARN notices (which are a lawful right to which the employes are entitled) could constitute a conspiracy to "deny a civil right under color of law" — in violation of 46 USC 1983. n nIt's a stretch — a REAL stretch – to compare not being given a pink slip with having cops beating you over the head (ie Rodney King) or lynching you, but the true irony here is that Section 1983 comes from the "Civil Rights Act of 1871", which was initially known as the "Anti Klu Klux Klan Act (of 1871)" n nWhich was intended — and a century later would be used — to prevent those holding positions of authority in the government from using that (the "color of law") to deny the civil rights of citizens. And ability to benefit from the WARN Act arguably is a civil right and arguably our first Black President thus is violating a law written in response to what the Klan was doing to Black folk…. Irony, no? n nAnd if a contractor failed to give required WARN notices, and then faced with a class action lawsuit turned around and tried to subrogate or interplead the US Govt in that he was afraid of loosing contracts if he sent out WARN notices contrary to DOL instructions — well that could be fun, lots of fun…
Wow. This admin digs to lower depths every day.
This is such a scandal.
BDZ – to continue our previous discussion, I think this is yet another example of Democratic desperation. The original encouragement to ignore the law (!) was dumb enough. To double down after this warning is almost unbelievable. If they were remotely confident about November this wouldn't be happening. These types of unforced errors committed, now, multiple times a day sometimes, are incredible.
I hope you are right, but I lost confidence in the electorate when they voted for Obama despite such massive and obvious evidence he would be terrible for the country–and against a moderate Republican war hero no less. I think we are cracked–that or we are past the tipping point (or both). So, while you are 100% right in theory, your theory assumes a moderately sane or non-bought-off electorate, and I seriously doubt we have than anymore, alas.
But like I said earlier, we have folk like Alana Goodman — and she isn't the only one. nWe have folks in Congress like Alan West and Michelle Bachmann. n nWe are not silenced the way we have been in the past — the world has changed, changed even from 2008 — and the Boy President truly doesn't understand that. n nThe USAF has a saying — if they are shooting at you, it means you are over the target. nThe more hysterical the NoBama crew gets, the truly more outrageous some of their stuff gets, the more and more I realize that we truly are winning — that we WILL WIN.
Obama again shows his sleazy political agenda, just hide the facts until after the election. Even if you pray at the Liberal alter, his actions should raise a red flag that something isn't on the up and up. That being said, obviously a sitting POTUS who fooled around and then denied it ever happened, had the total sympathy of the Liberals.
What a great way to get rid of defense contractors that they don't like. Tell them to violate the law and when an employee sues them they can be fined out of business by a bureaucrat!!!!
Perhaps the O administration has a hidden loophole! He wants to win in Nov. and could 'nt care less for lawsuits that will take many years to be resolved at the expense of the tax payers.
I can't believe I am reading this, he must really think the American people are really stupid.