“Numerous courts have opined that a “home base” is a place in which the employee has some sort of physical connection. But this connection must be more than a “notional” base, whereby the employee has a menial relationship.”

Introduction

A common sentiment during the Covid-19 pandemic was that a different society would emerge from its ashes. While overstated in many cases, one segment of society that appears to have changed for good is the white collar workplace. Indeed, after enjoying the flexibility of working from home for more than 2 years, many white collar workers are demanding that a remote work option remain a permanent fixture at their place of employment. And with seemingly no negotiating leverage due to worker shortages across the country, employers have mostly acceded to these demands, with many opting to implement a “hybrid” workforce where employees work from home for part of the work week and transit to the physical workplace for the rest of the week. Other employers have opted to have employees work entirely from home in what is now generally known as a “remote” employee.

But widespread adoption of a Hybrid Workforce presents a complex set of legal challenges for employers. These challenges are especially prevalent when making employment decisions using laws that were drafted decades ago to a new workplace that was never considered during the laws’ enactment. Nowhere is this problem more apparent than with the Worker Adjustment and Retraining Notification (“WARN”) Act, a statute adopted almost four decades ago in 1988. Simply put, the WARN Act sets forth notice requirements for employers who plan to close a plant or implement a reduction in force. Yet the WARN Act’s reduction in force provisions apply only to “single sites of employment,” which has been traditionally understood to mean a physical building or a group of buildings in contiguous locations. This  single site of employment definition makes the WARN Act ill-suited to address the emerging (but ubiquitous) issue of workers who are dispersed, e.g. Remote and Hybrid Workplaces.

With that in mind, this article seeks to highlight the issues with the WARN Act and Remote and Hybrid Workplaces and package them into a guide for employers. The article begins by summarizing the WARN Act and the regulations for single sites of employment. It then shifts to a recent district court case analyzing the issue of Remote Work under the WARN Act for purposes of Rule 23(b)(3)’s predominance requirement for class certification. The article concludes by offering some suggestions to help prevent WARN Act liability.