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Ellis v. DHL Express Inc.

Date Of Involvement: 06/13/2011
Docket: 10-1378


The Worker Adjustment and Retraining Notification (WARN) Act requires that employers provide their workers with 60 days notice before instituting a mass layoff. Workers who are not given this notice may recover back pay and benefits for the time during which they were not properly notified. However, the WARN Act applies only where a minimum number of workers experience an “employment loss” as a result of the mass layoff. An “employment loss” does not include “voluntary departures.” In this case, DHL Express announced that it would close several of its facilities and offered severance packages. Many workers did not accept these severance packages, which provided fewer weeks of pay and benefits than the WARN Act’s 60 days, were offered on short notice, and required the workers to relinquish their rights under the WARN Act and other statutes. But because many workers did accept the packages, the total number of workers left over was less than the threshold number required to trigger the WARN Act. DHL subsequently closed the facilities before 60 days had elapsed after its announcement.

The plaintiffs, who did not accept DHL's severance packages, seek to recover under the WARN Act. The court of appeals sided with DHL, agreeing that when its workers accepted severance packages in the face of imminent job losses, these workers’ departures were “voluntary.” Because all of the workers who accepted severance packages qualified as “voluntary” departures, the WARN Act was not triggered. The court held that the Act permits an employer to “gamble” that enough workers will leave their jobs “voluntarily” after the announcement of impending layoffs, so that the employer is not required to provide 60 days notice. The plaintiffs petitioned the Supreme Court, and Public Citizen assisted with their reply brief, arguing that the courts have split about whether job departures that are motivated by impending layoffs can ever be “voluntary” under the WARN Act.