Article · Labor and Employment
Anatomy of a Lawful Layoff: WARN Notice, Disparate Impact, and the OWBPA Release
29 U.S.C. §§ 2101
- Type
- Article
- Jurisdiction
- National
- Date
- 2025-05-16
- Topic
- Labor and Employment
A layoff is three legal problems wearing one name. The first is notice: whether the WARN Act or a state mini-WARN statute requires sixty or ninety days' warning, computed from headcount thresholds that are easy to trip and easier to miscount. The second is selection: whether the criteria used to choose who leaves can survive a disparate-impact analysis under the ADEA and Title VII, and whether the employer preserved the privileged adverse-impact study that would tell it in advance. The third is the release: whether the severance agreement actually buys peace, which under the OWBPA requires seven specific elements plus, for group programs, disclosure of the decisional unit with job titles and ages — and which, after McLaren Macomb, cannot carry the broad confidentiality and non-disparagement clauses that severance agreements have contained for decades. This article works through all three, plus the collateral obligations most employers discover late: effects bargaining, COBRA, final pay, accrued vacation, Section 409A, and unemployment insurance. A worked example follows a fictional employer through a 62-person reduction across two states.
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