The Worker Adjustment and Retraining Notification (“WARN”) Act requires a covered employer to provide 60 days advance notice to each “affected employee” prior to instituting a plant closing or mass layoff. See 29 U.S.C. §2102(a). The WARN Act excludes from its definition of employment losses which trigger the notice requirements “voluntary departures,” for-cause terminations, and retirements. Id. at §2101(a)(6). A recent 9th U.S. Circuit Court of Appeals decision addressing whether the term “voluntary departure” encompasses employee resignations following an employer’s plant closure or mass layoff announcement is at odds with decisions addressing the same issue from other circuits.

Although the WARN Act does not provide a definition of “voluntary departure,” the Department of Labor offered guidance in the Federal Register when addressing public comments to its proposed regulations enforcing WARN. The DOL explained that resignations and retirements should typically be considered voluntary departures, unless there is evidence that such departures were not truly voluntary, such as where “the employer has created a hostile or intolerable work environment or has applied other forms of pressure or coercion which forced the employee to quit or resign” or “where a worker was unduly pressured to accept the program.” See 54 Fed. Reg. 16042, 16046 (Apr. 20, 1989). Responding to comments, the DOL clarified, “DOL does not, however, agree that a worker who, after the announcement of a plant closing or mass layoff, decides to leave early has necessarily been constructively discharged or quit ‘involuntarily.’ (In the situation posed [sic], where the plant closing or mass layoff has been announced, and, presumably, notice has been given, the worker already has received the notice that WARN requires and whether his later resignation or retirement is voluntary or not is no longer germane.)” Id.

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