The news has been filled with recent layoffs, and the State of California has new rules as it relates to notice when an employer is engaging in a mass layoff. This article touches on the highlights of what is required to lay off employees in California. A lay-off decision is specific to each company and its operation so counsel should be consulted when doing any mass layoff.
While the State and Federal rules focus on applicability, timing and notice requirements, employers also have some rights as it relates to obtaining releases. The State and Federal WARN Act notices were designed to give people a headstart on finding a new job so that the EDD and related agencies weren’t flooded with applicants. However, Employers can also use them to stave off claims.
While you cannot require a release of claims agreement in exchange for the mandatory 60-day notice or pay required by the WARN Act, Employers can require a release for additional severance pay beyond what is legally required. That is why it is critical to understand the law and work with legal professionals to ensure compliance on all fronts.
Essential Elements of a Cal-WARN Act Letter and Notice to the State
On January 1, 2026, the requirements the California Worker Adjustment and Retraining Notification (WARN) Act went into effect under SB 617.
A mass layoff under Cal-WARN means a layoff during any 30-day period of 75 or more employees at a covered establishment. (Cal. Lab. Code 1400 (d)). The California definition of mass layoff does not differentiate a “single site” instead it uses the term “covered establishment” which is any industrial or commercial facility or part thereof that employs, or has employed within the preceding 12 months, 75 or more persons. (Cal. Lab. Code 1400 (a)).
You are required to notify:
- Your affected employees.
- The Employment Development Department (EDD).
- Your Local Workforce Development Area (Local Area).
- The chief elected official of the local government affected by the WARN Notice.
Note: The chief elected official will vary according to the local government structure. In the case of elected boards, the notice is to be served upon the board’s chairperson.
Notice to Employees
You must notify your employees using a method of delivery that ensures their receipt of the notice at least 60 days before the mass layoff, plant closure, or relocation. Examples include:
- First class mail.
- Personal delivery with optional signed receipt.
- A notice in your employee’s pay envelope.
Note: A ticketed or preprinted notice regularly included in each employee’s paycheck or pay envelope does not meet the requirements.
Required Information
The written notice must include the following information:
- Name and address of the employment site where the mass layoff, plant closure, or relocation will occur.
- Name, phone number and email of a company official who can be contacted if we need more information.
- Statement that says if the planned action will be permanent or temporary.
- Statement that says if the entire plant will be closed.
- Expected date of the first separation, and the expected schedule for subsequent separations.
- Job titles of affected positions, and the number of employees to be laid off in each job title.
- For a lay-off affecting multiple locations, list the job titles and the number of affected employees by job title for each location. Please refer to this for multiple impacted locations.
- A statement indicating whether your company plans to coordinate services (such as rapid response orientation) through the Local Workforce Development Board, through another entity, or does not plan to coordinate services with any entity.
- A functioning email and telephone number of the Board, and the following description of the rapid response activities offered by the Local Board:
- "Local Workforce Development Boards and their partners help laid off workers find new jobs. Visit an America’s Job Center of California location near you. You can get help with your resume, practice interviewing, search for jobs, and more. You can also learn about training programs to help start a new career."
- A description of the CalFresh program, the CalFresh benefits helpline, and the link to the CalFresh website. Information about CalFresh can be found here.
- List if bumping rights exist.
- Name of each union representing affected employees, if applicable.
- Name and address of the chief elected officer of each union, if applicable.
Timeline
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- Provide the expected date when the mass layoff will commence or if it already occurred the date it occurred; and
- The expected date when the individual employee will be separated.
Filing a WARN Notice with the EDD
To file your WARN Notice with the EDD, email EDDWarnNotice@edd.ca.gov. Your email should:
- Include the employer name in the subject line.
- Include the written WARN notice as an attachment. (Accepted file types include: .DOC, .DOCX, and .PDF)
- Include contact information in case we have questions.
Filing a WARN Notice with your Local Area and Chief Elected Officials
You can find your Local Area in the Local Workforce Development Area Administrators (Local Board) listing.
Remote Workers and Notice Requirements
The single site of employment for workers whose main job requires travel, who are based in different locations, or whose main job is outside any regular employer work sites (like railroad workers, bus drivers, or salespeople) is one of the following:
- The location the employee is assigned work.
- The location where the employee reports.
- The location assigned to the employee as their home base.
Sources: 20 CFR 639.3(i)(6), Page 353 & Department of Labor WARN Employer’s Guide, Page 36.
Contract Employees
Under federal law, contracted employees who work for another employer and are paid by that employer are not counted as affected if the company lays off its employees. Sources: 20 CFR 639.3(e), Page 352 & Department of Labor WARN Employer’s Guide, Page 5
Part-time or seasonal employees are workers :
- Who work fewer than 20 hours per week on average.
- Who have worked less than 6 of the 12 months before the notice is required, including full-time workers.
Part-time workers are not counted when deciding if there has been a plant closure or mass layoff, but they must still get a WARN notice if one is given. Sources: 20 CFR 639.3(h), Page 353 & Department of Labor WARN Employer’s Guide, Page 4
California WARN requirements differ from Federal law and provide that employees who have worked at least 6 months in the 12 months before the WARN Notice is required are counted when deciding if there’s a mass layoff, plant closure, or relocation at a covered company. Source: California Labor Code, Section 1400(d)&(h)
Federal versus State Law Comparisons
The State of California provides this helpful comparative table:
|
Category |
Federal WARN |
California WARN |
|
Covered Employers |
Applicable only to employers with 100 or more full-time employees who must have been employed for at least 6 months of the 12 months preceding the date of required notice in order to be counted. (29 USC 2101 and 20 CFR 639.3) |
Applicable to a “covered establishment” that employs or has employed in the preceding 12 months, 75 or more full and part-time employees. As under the federal WARN, employees must have been employed for at least 6 months of the 12 months preceding the date of required notice in order to be counted. [California Labor Code Section 1400.5 (a) and (h)] |
|
Mass Layoff, Termination, Relocation or Relocation of a Call Center |
Plant closings involving 50 or more employees during a 30-day period. Layoffs within a 30-day period involving 50 to 499 full-time employees constituting at least 33% of the full-time workforce at a single site of employment. Layoffs of 500 or more are covered regardless of percentage of workforce. (29 USC, et seq., 2101 and 20 CFR 639.3) |
Plant closure affecting any amount of employees. Layoff of 50 or more employees within a 30-day period regardless of % of workforce. Relocation of at least 100 miles affecting any amount of employees. Relocation of a call center to a foreign country regardless of the percentage of workforce affected. [California Labor Code Section 1400.5 (d)-(f) and 1409 (b)] |
|
Legal Jurisdiction |
Enforcement of WARN requirements through United States district courts. The court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. (29 USC 2101, et seq) |
Civil action may be brought in “any court of competent jurisdiction” related to a Mass Layoff, Termination, Relocation, or Relocation of a Call Center. The court may award reasonable attorney’s fees as part of costs to any prevailing plaintiff. The California WARN law is in the Labor Code and the authority to investigate through the examination of books and records is delegated to the Labor Commissioner. The Labor Commissioner may enforce the notice requirements, including investigating an alleged violation and ordering appropriate temporary relief to mitigate the violation pending the completion of a full investigation or hearing. (California Labor Code Sections 1404 and 1406) |
|
Employer Liability |
An employer who violates the WARN provisions is liable to each employee for an amount equal to back pay and benefits for the period of the violation, up to 60 days, but no more than half the number of days the employee was employed by the employer. [29 USC; 2104 (a)]. |
A possible civil penalty of $500 a day for each day of violation. Employees may receive back pay to be paid at employee’s final rate or 3-year average rate of compensation, whichever is higher. In addition, employer is liable for cost of any medical expenses incurred by employees that would have been covered under an employee benefit plan. The employer is liable for period of violation up to 60 days or one-half the number of days the employee was employed whichever period is smaller. (California Labor Code Section 1403) A call center employer who does not provide notice is ineligible to be awarded or have renewed any direct or indirect state grants or state-guaranteed loans for five years and shall be ineligible to claim a tax credit -for five taxable years. (California Labor Code Section 1411 (a)) |
|
Notice Requirements |
An Employer must provide written notice 60-days prior to a plant closing or mass layoff to employees or their representative, the State dislocated worker unit (the Employment Development Department, Workforce Services Division in California), and the chief elected official of local government within which such closing or layoff is to occur. (29 USC, 2102; 20 CFR 639.5) |
An employer must give notice 60-days prior to a mass layoff, termination, relocation, or relocation of a call center. In addition to the notifications required under federal WARN, notice must also be given to the Local Workforce Development Board, and the chief elected official of each city and county government within which the termination, relocation or mass layoff occurs. (California Labor Code Section 1401) |
|
Category |
Federal WARN |
California WARN |
|
Exceptions and Exemptions to Notice Requirements |
Regular Federal, State, local and federally recognized Indian tribal governments are not covered. The following situations are exempt from notice: There is an offer to transfer employee to a different site within a reasonable commuting distance. The closure is due to unforeseeable business circumstances, a natural disaster. The closing or layoff constitutes a strike or constitutes a lockout not intended to evade the requirement of this chapter. |
California WARN does not apply when the closing or layoff is the result of the completion of a particular project or undertaking of an employer subject to Wage Orders 11, 12 or 16, regulating the Motion Picture Industry, or Construction, Drilling, Logging and Mining Industries, and the employees were hired with the understanding that their employment was limited to the duration of that project or undertaking. The notice requirements do not apply to employees involved in seasonal employment where the employees were hired with the understanding that their employment was seasonal and temporary. Notice is not required if a mass layoff, relocation or plant closure is necessitated by a physical calamity or act of war. Notice of a relocation or termination is not required where, under multiple and specific conditions, the employer submits documents to the Department of Industrial Relations (DIR) and the DIR determines that the employer was actively seeking capital or business, and a WARN notice would have precluded the employer from obtaining the capital or business. (California Labor Code Section 1402.5) This exception does not apply to notice of a mass layoff as defined in California Labor Code Section 1400.5 (d). |
If you are a California employer with questions or in need of assistance around the Cal-WARN Act, layoffs, or other employment matters, please contact Christine Long at 408.286.5800 or christine.long@berliner.com.