Our colleague Marc A. Mandelman, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “8th Circuit Rules Parties to Corporate Transactions Cannot Contract Around the WARN Act Sale of Business Exception ”
Following is an excerpt:
In a rare case interpreting the Worker Adjustment and Retraining Notification (“WARN”) Act “sale of business” exception, the U.S. Court of Appeals for the 8th Circuit recently held in Day v. Celadon Trucking Servs., Inc., 8th Cir., No. 15-1711 (July 5, 2016) that a buyer of a business remained liable under WARN to the seller’s employees to whom the buyer did not make offers of employment, despite provisions in the asset purchase agreement (“APA”) that placed all WARN Act liability on the seller. …
The key takeaway of the Day case for parties to a corporate transaction is that WARN liabilities are governed by statute, and the implications of WARN obligations and the sale of business provision of WARN must be carefully evaluated. The case highlights that although the sale of business exception may be helpful to buyers in absolving them of WARN obligations to employees who they hire, the application of this important WARN “exception” may also result in the buyer remaining liable for the seller’s failure to provide WARN notice to employees whom the buyer does not offer continued employment, particularly where neither party satisfied the obligation to issue WARN notice or provide the employees with WARN pay in lieu of notice.