Federal Judgeship Act of 2009

Madam Speaker, I rise today regarding the Forewarn Act (H.R. 3042), which was introduced on June 25, 2009, in an effort to help American workers by updating and improving the Worker Adjustment and Retraining Notification (WARN) Act (P.L. 100-379). I am pleased to have had the opportunity to work with the Gentleman from California, Mr. Miller, the Chairman of the House Committee on Education and Labor, to craft this important legislation.

Congress enacted the WARN Act over two decades ago in August 1988 in an effort to help American workers better prepare for, and overcome the difficulties resulting from the loss of a job due to a mass layoff or plant closure. Specifically, through the WARN Act, Congress required that employers give workers 60 days advance notice of mass-layoffs to facilitate their efforts to find a new job, obtain retraining, or otherwise prepare for the significant consequences of lost employment. Simultaneously, to maximize the assistance provided to workers under such difficult circumstances, Congress also required the same 60-day notice be provided to state dislocated worker entities and the chief elected official of the pertinent local government.

Last Congress, I was prompted to closely review the WARN Act and its requirements in the wake of a decision by the General Motors (GM) Corporation to phase out 500 jobs and close its Powertrain facility in Massena, New York, which I represent. As a result of this examination, on September 25, 2007, I introduced the Forewarn Act of 2007 (H.R. 3662) to strengthen the WARN Act by expanding its scope and increasing its notice requirements to 90 days. Additionally, H.R. 3662 sought to enhance compliance by increasing the back pay penalty, clarifying that the notice period should be determined by the use of ``calendar'' rather than ``business'' days, and giving the Secretary of Labor or appropriate state attorney general the ability to enforce the law. I was later pleased to vote for similar provisions when the House considered the Trade and Globalization Assistance Act of 2007 (H.R. 3920) authored by Mr. Miller to reauthorize the Trade Adjustment Assistance Act. Unfortunately, H.R. 3920 did not become law before the conclusion of the 110th Congress.

Since that time, economic circumstances have reinforced the need to modernize and expand the WARN Act. From December 2007 through May 2009, seven million Americans have become unemployed and in the 11 counties encompassed by New York's 23rd Congressional District, over 34,000 people are without work. Moreover, during that timeframe, there have been 37,059 mass layoffs across the nation involving over 3.8 million workers. In the face of such circumstances, it is incumbent upon Congress to ensure that American workers have as much notice as practicable and that the law providing such notice and associated rights is understandable and enforceable.

Thus, as the Gentleman from California and I reviewed the WARN Act, one of our goals was to clarify provisions that had caused confusion and resulted in litigation. For example, the question of whether the notice period required under the Act was to be determined by counting ``calendar'' days or ``business'' days has long been litigated. In our recently introduced bill (H.R. 3042), we seek to clarify that ``calendar'' days are indeed to be used when calculating the notice period. Likewise, there has been confusion as to whether or not an employer's ``good faith'' could be used as a complete defense to liability under the Act. When Congress enacted the WARN Act, it clearly intended that an employer's good faith should only be used by a court to reduce the damages owed--not to entirely eliminate liability--and we have sought to reinforce Congress' original intent through Section 2(c)(3) of this proposal.

As in the legislation (H.R. 3920) passed by the House in the 110th Congress, the current Forewarn Act (H.R. 3042) would require employers to give 90 days, rather than 60 days, notice of mass-layoffs and plant closures to employees. However, H.R. 3042 would expand the bill's reach to those employers who have 75 or more employees, including those who are new or part-time, and lower the threshold number of affected employees from 50 to 25 employees. In addition, our measure would require employers to give notice to the Governor of the pertinent state, as well as to the U.S. Secretary of Labor, who in turn would be required to give notice to the appropriate Senators and Members of the House of Representatives.

To better ensure compliance, as H.R. 3662 and H.R. 3920 would have done last Congress, the current Forewarn Act (H.R. 3042) would increase the remedies available to employees in instances where proper notice was not given. For example, employees could receive damages in the amount of double back pay for each calendar day they were not provided with the requisite notice and the Secretary of Labor could initiate an enforcement action on their behalf. The bill (H.R. 3042) would make clear that the appropriate statute of limitations is two years and provide further protections to workers by precluding waivers of their rights under the law unless they were made by the Secretary of Labor, an attorney general, or with the assistance of counsel. We have also clarified that parent companies are ultimately responsible for the actions or inactions of their subsidiaries.

Finally, to increase assistance to workers, our bill (H.R. 3042) requires employers to post notices regarding worker rights under the WARN Act and to permit on-site access to rapid response teams. Likewise, it requires the Secretary of Labor to prepare a guide of benefits and services that may be available to unemployed workers.

Madam Speaker, as Congress continues its efforts to address our nation's current economic circumstances, it should favorably consider the Forewarn Act.