What the Notice Must Contain and Who Receives It
There is no single notice. The regulation writes four lists for four audiences, and each carries elements the others do not. A union receives job titles and the names of the workers holding them; an unrepresented employee receives an individual separation date.
The rule in short
Notice goes to each representative of affected employees or, where there is none, to each affected employee, and separately to the state dislocated worker unit and the chief elected official of the local government. The four recipients receive different content. Representatives get job titles and the names of workers holding affected jobs; individual employees get their own expected separation date and whether bumping rights exist; officials get counts by job classification and union contacts.
The federal statute requires a written notice, and the regulation then writes four of them. The recipients are a union or the affected employees themselves, the state dislocated worker unit, and the chief elected official of the local government, and each receives a different list of elements. An employer that produces one document and copies it to everyone has satisfied none of the lists in full and has usually told at least one audience more than the regulation asks for.
Who has to be served
Notice goes to each representative of the affected employees as of the time notice is required or, where there is no such representative, to each affected employee. It also goes to the state or entity designated by the state to carry out rapid response activities, and to the chief elected official of the unit of local government within which the closing or layoff will occur. Where more than one such unit exists, the employer notifies the one to which it paid the highest taxes for the preceding year, aggregating all local taxes paid directly to that government.
Service on a representative means service on the chief elected officer of the exclusive representative or bargaining agent of the affected employees at the time of the notice. Where that person is not the officer of the local union representing the affected employees, the regulation recommends a copy to the local official as well. For local governments organized around elected boards, the notice goes to the board's chairperson.
Affected employees are those who may reasonably be expected to suffer employment loss, including those who will likely lose their jobs through bumping rights or other factors, so far as they can be identified when notice is due. Where the employer cannot identify who will be displaced from a particular eliminated position, notice goes to the incumbent in that position.
The category has edges worth noting. Affected employees include managerial and supervisory staff, but not business partners. Consultants and contract employees who have a separate employment relationship with another employer and are paid by that employer, or who are self-employed, are not affected employees of the business to which they are assigned, however integrated into the site they appear. And where a representative exists, the individual employees it represents are not separately served; the representative is the recipient on their behalf.
Four lists, and what distinguishes them
Notice to a representative contains the name and address of the employment site, the name and telephone number of a company official to contact, a statement whether the action is expected to be permanent or temporary and whether the entire plant is closing, the expected date of the first separation and the anticipated schedule for making separations, and the job titles of positions to be affected together with the names of the workers currently holding those jobs.
Notice to an affected employee who has no representative must be written in language the employees can understand, and contains the permanence statement, the expected date the action will commence and the expected date on which that individual employee will be separated, an indication whether bumping rights exist, and the contact official. The individual separation date is what distinguishes this list: a union receives a schedule, an employee receives their own date.
Notice to the state dislocated worker unit and to the chief elected official contains the site name and address, the contact official, the permanence statement, the expected date of the first separation and the schedule, the job titles affected and the number of affected employees in each job classification, an indication whether bumping rights exist, and the name of each union representing affected employees with the name and address of its chief elected officer. Here the counts by classification replace the individual names.
Each of the first three lists carries the same optional addition. The notice may include further information useful to the employees, such as details of available dislocated worker assistance and, where the action is expected to be temporary, its estimated duration if known. That permission is worth using. The state unit receiving the notice exists to organize the response, and a notice that identifies the assistance already arranged gives it something to build on rather than something to chase.
| Element | Representative | Unrepresented employee | State unit and local official |
|---|---|---|---|
| Site name and address | Required | Not listed | Required |
| Permanent or temporary statement | Required | Required | Required |
| Date of first separation and schedule | Required | The employee's own separation date | Required |
| Job titles affected | With the names of workers holding them | Not listed | With the number in each classification |
| Bumping rights | Not listed | Required | Required |
| Union contacts | Not listed | Not listed | Required |
The shorter route for government recipients
The regulation offers an alternative for the two government recipients. In place of the full list, an employer may give the state unit and the unit of local government a written notice stating the name and address of the employment site, the name and telephone number of a company official to contact, the expected date of the first separation, and the number of affected employees. The remaining information must then be maintained on site and readily accessible to both recipients.
The condition is enforced rather than aspirational. The regulation provides that if the information is not available when requested, it will be deemed a failure to give required notice. An employer choosing the shorter form is therefore accepting an ongoing obligation to hold the fuller record in a retrievable state, and it is trading paperwork now for exposure later if the file is not maintained.
The regulation opens the contents section with a two-word rule: all notice must be specific. Everything that follows is an application of it. A notice that names no contact official, gives no expected date and identifies no positions is not a short notice; it is not a notice. And where voluntary notice has gone out earlier without all the elements, the complete information must still reach the statutory recipients in writing at least sixty days before the action, as described in the sixty days and when the clock starts.
Additional recipients, and notices given late
State statutes add recipients and elements. New York requires notice not only to affected employees, their representatives and the state department, but also to the local workforce investment boards, the chief elected official of each unit of local government and each school district in the locality, and each locality providing police, firefighting, emergency medical or ambulance services to the site. An employer working from the federal list alone will miss those recipients entirely; the wider pattern is set out in state statutes that demand more.
Where an exception permits a shortened period, the content obligation does not fall away. The employer must give as much notice as is practicable and must, at the time notice is actually given, provide a brief statement of the reason for reducing the notice period in addition to the other required elements. That statement is a fifth element rather than a substitute for the first four, and how it is written is treated in giving as much notice as possible when an exception applies.
Points to carry away
- Notice goes to the exclusive representative of affected employees, or to each affected employee where there is none.
- The state dislocated worker unit and the chief elected official of the local government are separate recipients.
- Notice to a representative includes job titles and the names of workers currently holding affected jobs.
- Notice to an unrepresented employee includes that employee's expected separation date and whether bumping rights exist.
- Notice to officials includes the number of affected employees in each job classification and the union contacts.
- An abbreviated official notice is permitted if the remaining information is kept on site and readily accessible.
Questions readers ask
Which local government receives the notice?
The chief elected official of the unit of local government within which the closing or layoff is to occur. Where the site sits in more than one such unit, the employer notifies the one to which it determines it directly paid the highest taxes for the year preceding the year of the determination, aggregating all local taxes paid directly to that government. Where the local structure uses an elected board rather than a single officer, the notice goes to the board's chairperson. A unit of local government here means a general purpose political subdivision with taxing and police powers.
Are part-time employees entitled to notice?
Yes. The regulation is explicit that while part-time employees are not counted in determining whether the plant closing or mass layoff thresholds are reached, such workers are due notice. That produces the counter-intuitive result that a group of people who did not contribute to the threshold nonetheless receive the letters. The same principle applies to employees exempt from notice under the statute's own exemptions in reverse: they count toward coverage and toward the thresholds, but are not entitled to notice.
Who inside the company should sign and send it?
The regulation leaves that to the employer, saying it is the employer's responsibility to decide the most appropriate person within the organization to prepare and deliver the notice, and suggesting that in most instances this may be the local site plant manager, the local personnel director or a labor relations officer. What the regulation does fix is the recipient side. Notice to a representative is served on the chief elected officer of the bargaining agent, with a copy recommended to the local union official where that is a different person.
Sources
- 20 CFR 639.7 — What must the notice containSets the separate element lists for representatives, unrepresented employees and government recipients, and the abbreviated alternative.
- 20 CFR 639.6 — Who must receive noticeIdentifies the four recipients, requires service on the chief elected officer of the bargaining agent and confirms part-time workers are due notice.
- 29 U.S.C. 2102 — Notice required before plant closings and mass layoffsRequires written notice to representatives or affected employees, the state rapid response entity and the local chief elected official.
- 29 U.S.C. 2107 — Authority to prescribe regulationsProvides that mailing to a last known address or inclusion in a paycheck is an acceptable method of service.
- 20 CFR 639.4 — Who must give noticeLeaves the choice of the person preparing the notice to the employer and names the usual candidates.
- New York Labor Law section 860-bAdds school districts and emergency service providers to the list of recipients under a state statute.
Rapid Response Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Layoff Notice
Giving as Much Notice as Possible When an Exception Applies
Where a statutory exception applies, the employer must give as much notice as is practicable to the union, non-represented employees, the state dislocated worker unit and the unit of local government, and the regulation acknowledges that in some circumstances this may be notice after the fact. At the time notice is actually given, the employer must also provide a brief statement of the reason for reducing the notice period, in addition to the ordinary content elements.
What Counts as a Single Site of Employment
A single site of employment can be one location or a group of contiguous locations, and a campus or industrial park may be one site. Separate buildings not in immediate proximity may still be one site where they are reasonably close, used for the same purpose and share staff and equipment. Contiguous buildings with separate management, different products and separate workforces are separate sites. Mobile and outstationed workers belong to the home base from which their work is assigned.
State Statutes That Demand More
State notice statutes depart from the federal model in four directions. California sets coverage at a seventy-five person establishment and counts a mass layoff at fifty separations without any percentage test. New York halves the employer threshold, sets closings at twenty-five and requires ninety days. Maine requires ninety days to a state official before a closing or relocation and imposes severance pay of one week per year of service.