19 Del. Admin. Code § 1103-4.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1103-4.0 - Exceptions

4.1 The State WARN Act establishes 5 exceptions to the 60-day notice requirement:

4.1.1 The "seeking-capital-or-business exception" under 19 Del.C. § 1905(a)(1);

4.1.2 The "unforeseen-business-circumstances exception" under 19 Del.C. § 1905(a)(2);

4.1.3 The "temporary-employment exception" under 19 Del.C. § 1905(a)(3);

4.1.4. The "natural-disaster exception" under 19 Del.C. § 1905(a)(4); and

4.1.5 The "strike-or-lockout exception" under 19 Del.C. § 1905(a)(5).

4.2 In all cases, an employer invoking an exception bears the burden of proof to show that the requirements for an exception have been met.

4.3 For the seeking-capital-or-business exception, the Code requires an employer to have had a reasonable and good faith belief that giving the required notice would have precluded the employer from obtaining the needed capital or business.

4.3.1 To make this showing, the employer must:

4.3.1.1 Identify the specific actions taken to obtain such capital or business;

4.3.1.2 Show there was a realistic opportunity to obtain the capital or business sought;

4.3.1.3 Show the capital or business sought would have been sufficient to enable the employer to avoid or postpone the plant closing, mass layoff, or relocation; and

4.3.1.4 Show that a potential customer or financing source would have been unwilling to provide the new business or capital if notice were given.

4.3.2 The employer's actions will be viewed in a company-wide context. An employer with access to capital markets or with cash reserves may not avail itself of this exception by looking solely at the financial condition of the single site of employment to be closed.

4.4 For the temporary-employment exception:

4.4.1 The employer must demonstrate that it informed each affected employee at the time of hire that the job was temporary. For purposes of this regulation, "at-will" employment is not temporary employment. Providing notification to at-will employees, at the time of hire or otherwise, that their employment is subject to termination at any time shall not constitute notice that employment is of limited duration.

4.4.2 Employment in an industry that traditionally hires temporary employees does not, in and of itself, render a particular employee's employment temporary.

4.4.3 Employers may not attempt to avoid notice requirements by purporting to convert permanent employment into temporary work.

4.5 For the natural-disaster exception, the Code requires that the mass layoff or plant closing be "due to any form of natural disaster".

4.5.1 The term "due to" means that the mass layoff or plant closing was would not have occurred but for the natural disaster, and the natural disaster was a substantial factor in bringing about the mass layoff or plant closing.

4.5.2 The term "natural disaster" includes floods, earthquakes, droughts, wildfires, storms, tidal waves, tsunamis, any form of a pandemic declared by the Centers for Disease Control and Prevention, and similar effects of nature.

19 Del. Admin. Code § 1103-4.0

28 DE Reg. 463 (12/1/2024) (Final)