Without WARN-ing: Third Circuit Clarifies WARN Act's Unforeseen Business Circumstances Exception

What Happened: The Third Circuit Court of Appeals joined five other circuits in holding that the unforeseen business circumstances exception excused WARN notice where an event outside the employer's control that would trigger layoffs was possible but not probable to occur.

The Larger Landscape: While the Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have also adopted a probability standard for determining when the unforeseen business circumstances exception applies, the other circuits have not yet ruled on the issue.

What Employers Should Do: Despite this ruling, employers in all circuits should remember that WARN exceptions—particularly the unforeseen business circumstances exception—are construed narrowly, and they should seek legal advice in determining whether federal and/or state WARN notice may be required.