ATTACHMENT II
The following questions and answers are intended to
provide some consistency of services for workers impacted by airport security
transitions.
Question #1: Are contractors required to issue WARN notices?
Response: This requires a three-part answer:
Part 1--What WARN covers.
WARN covers two kinds of
events: a “plant closing” and a “mass
layoff.” A plant closing occurs when an
employer, within a 30-day period, terminates or lays off at least 50 workers
(not counting “part-time” workers) at a “single site of employment” or an “operating
unit” within a single site of employment. It is not necessary that all the affected workers work in the
same single site of employment or operating unit if the closing of the single
site of employment or operating unit directly results in other layoffs or
terminations.
For example, if the
contractor closes its Scranton airport operations and lays off 40 workers, and,
because of the closing of the payroll office, also lays off or terminates 10
clerical workers who provided support to the airport operations but were not
part of it, that would be a covered plant closing. By the same token, if a contractor closes an airport operation
and lays off or terminates 50 workers and, because of bumping rights, some of
the laid off workers bump workers in another company site who lose their jobs,
that still counts as a plant closing if the net result is that 50
full-time workers lose their jobs.
A mass layoff occurs when
500 or more workers (excluding any “part-time” workers) are laid off or
terminated at a “single site of employment” during a 30-day period; or 50-499
workers (excluding any part-time employees) are laid off or terminated
at “a single site of employment” and that number of workers represent 33% of
the total workforce (excluding “part-time” workers) at the “single site of
employment.”
If all workers at a
particular airport are terminated by the contractor, it is probably a
plant closing for purposes of WARN.
Workers who are hired by the Department of Transportation (DOT)
will not count in determining the number of “affected employees.” The workers who were terminated or laid off
would be considered voluntary quits.
Thus, if a contractor had 100 employees at an airport and the DOT hired
49 of them, there would be a plant closing for WARN purposes. If DOT hires 51
workers there would not be a covered plant closing. The fact that the employer may not know exactly who will be laid
off and who will be hired by DOT does not change the obligation to provide a
WARN notice.
Part 2--Notice the
Employer Is Required to Give Affected Employees
WARN requires employers to
provide at least 60 calendar days advance written notice of a plant
closing or mass layoff unless certain exceptions apply. The only exception that might be applicable
to the airport security companies is the “unforeseeable business
circumstances” exception which would not appear to be applicable
in this case, since the plan for the Federal takeover has been known for
some time. This is not a “business
circumstance that is caused by some sudden, dramatic, and unexpected action or
conditions outside the employer’s control” as required by Section of
639.9(b) of the WARN Act.
Part 3--If An Employer
is Unable To Identify Affected Employees
Notice
is required to be given to employees who may reasonably be expected to
experience an employment loss. This
includes employees who will likely lose their jobs because of bumping rights or
other factors, to the extent that such workers can be identified at the time
notice is required to be given. The
problem here is that DOT will not make its decisions on who they will hire
until after notice must be provided. In
this particular case, if, at the time notice is required to be given,
the employer cannot identify those employees who will be offered Federal
employment, the employer must provide notice to all workers since, apparently,
all workers who are not hired by DOT will be terminated. We would recommend, however, that if the
employer gives notice to all workers, it include some information about the DOT
hiring process to reduce alarm among its workers.
Question #2: Are public announcements of layoffs by the contractor in the
community where the layoffs will occur sufficient to initiate rapid response
assistance?
Response: Yes.
Question #3: What employees are eligible to
participate in rapid response assistance?
Response: All employees covered by the WARN notice or other announcements.
Question #4: Do workers need to have an individual layoff notice prior to
receipt of rapid response?
Response: No. A public announcement
of a layoff or WARN notice triggers rapid response assistance to all workers
who may be impacted.
Question #5: When can other services such as core, intensive and training
commence?
Response: As quickly as workers who will not be hired into federal jobs are
identified. This identification can be
in the form of a Notice of Expected Separation.
Question #6: What are the minimum requirements for a Notice of Expected
Separation from the employer?
Response: The name of the worker and the date of the expected layoff. One letter may be prepared covering a large
number of workers, if appropriate.
Question #7: Can
other services, including training, commence prior to layoff date?
Response: Yes. Individualized
assistance can commence as soon as a layoff notice or a notice of expected
separation is issued to the worker by the employer.
Question #8: Does
this mean workers can still be employed in their old job—or even in a new job
for temporary income support purposes—and still be eligible for services under
the WIA dislocated worker program?
Response: Yes.
Question #9: A determination on eligibility for UI will not have been
completed until a worker is laid off.
How is that to be handled?
Response: The definition of an eligible dislocated worker in WIA 101(9)
includes individuals who have received a notice of layoff or a notification of
a closure. For individuals affected by
layoff notices only (and not a part of a plant closure), workers may be
eligible for unemployment compensation or employed for a duration which shows
attachment to the workforce. In the
case of airport screeners who are being laid off as a result of federal
actions, it is expected that their employment with the contractor would show
attachment to the workforce.
Question #10: Is there a waiting period between the time core services,
intensive services and training services commence?
Response: No. WIA regulations require
that at least one core service and one intensive service be received prior to
receipt of training. This could be
individual assessment (core service) and development of an individual service
plan (intensive service) which document the need for intensive and training
services and identify the areas of training required to compete for airport
security jobs or other jobs in the community.
No specific time periods are required.
Question #11: If a current worker does not qualify for the new federal security
jobs due to education or training and is a U.S. citizen, could he/she receive
training that would qualify for a federal job?
Response: Yes.
Question #12: How does this response relate to “unlikely to return to
previous occupation or industry.”
Response: The workers affected are those who do not meet the newly
implemented federal requirements; thus, without additional training many (if
not most) workers will not qualify for jobs in their previous occupation or industry
(airport screeners). Other workers who
will not qualify for federal jobs should be offered training to permit workers
to qualify for jobs that are at least commensurate with layoffs jobs in terms
of pay and benefits given that these individuals have lost their jobs as a
result of federal actions.
Question #13: If
the state does not have sufficient dislocated worker resources to serve these
workers, can NEG funds be requested?
Response: In view of the timeframes involved and the urgency of the need
for assistance, we expect that services (beyond rapid response assistance) will
begin with formula funds. If the state
and local WIBs determine that additional resources are required, a NEG
application may be submitted to the Department for layoffs of more than 50
individuals.
Question #14: Is
basic education or GED classes considered intensive or training services?
Response: Training.
Question #15: If a
person does not have a permit to work in the United States, is he or she
eligible for core, intensive or training services under WIA?
Response: WIA
itself does not permit nor require the provision of services to individuals
based upon their immigration status.
The Department of Labor interprets WIA Section 188(a)(5) as a
non-discrimination provision and not as an eligibility provision. What this means is that states and local
areas cannot discriminate against persons who fall into one of the citizenship
categories specified in that section.
It does not mean that WIA forbids states and local areas from serving
individuals outside those categories.
On the other hand, WIA does not require that states and local areas
serve individuals outside those categories.
This being said, states and local areas will need to consider, in
developing a policy in this area, the extent to which limited training
resources should be used to serve workers who may not be able to produce the
documentation required by law for employment.