Obama administration tells contractors a second time: Don’t issue layoff notices
I copied the Office of Management and Budget "memorandum" in case it disappeared like other documents have on other government web sites. It seems that quite a few "memorandum" are being issued that one day are visible and the next are just gone. Earlier this summer the Labor Department issued a notice to government contractors that they should not issue written notices to employees they will have to layoff. The Labor Dept. was a bit more forceful as it stated "it is neither necessary nor appropriate" for federal contractors to issue the warnings, according to The Hill and FOX News.
An offer to pay the legal fees that federal contractors have to pay in court cases for breaking this law is included in the OMB "memorandum". The WARN Act requires employers with more than 100 employees to give a 60-day notice of up coming foreseeable mass layoffs. The $500 billion in Pentagon cuts under the sequestration cuts mean that big layoffs will happen on January 2nd 2013.
Before having knee-jerk reaction about 0bama once again just thumbing his nose at the law and doing as he wishes; I thought I would read the Worker Adjustment and Retraining Notification (WARN) Act, again, and see if there are provisions that would allow that the law be disregarded if there was possible future legislation that would affect it.
I plainly see " ... shall be responsible for providing notice for any plant closing or mass layoff in accordance with section 2102 of this title." repeated a number of times in the law. The only other part I saw read, "§2107. Authority to prescribe regulations
(a) The Secretary of Labor shall prescribe such regulations as may be necessary to carry out this chapter. Such regulations shall, at a minimum, include interpretative regulations describing the methods by which employers may provide for appropriate service of notice as required by this chapter.
(b) The mailing of notice to an employee's last known address or inclusion of notice in the employee's paycheck will be considered acceptable methods for fulfillment of the employer's obligation to give notice to each affected employee under this chapter.
(Pub. L. 100–379, §8, Aug. 4, 1988, 102 Stat. 894.)"
What I did not see was anything that said you can totally ignore the law - if the Department of Labor tells you to ignore it, if the Office of Management and Budget tells you to ignore it, nor even if Pres. Barack 0bama tells you to ignore it.
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
MEMORANDUM FOR THE CHIEF FINANCIAL OFFICERS AND SENIOR
PRocuREMENT EXECUTIVES OF EXECUTIVE DEPARTMENTS AND AGENCIES
CONTROLLER, OFFICE OF FEDERAL FINANCIAL MANAGEMENT
JOSEPH G. JORDAN
ADMINISTRATOR FOR FEDERAL PROCUREMENT POLICY
SUBJECT: Guidance on Allowable Contracting Costs Associated with the Worker Adjustment and Retraining Notification (WARN) Act
The Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. §§ 2101-2109, generally requires employers with at least 100 employees to provide written notice to affected employees 60 days before ordering certain plant closings or mass layoffs if they are reasonably foreseeable. On July 30, 2012, the Department of Labor (DOL), which is the Federal agency responsible for administering the WARN Act, issued Training and Employment Guidance Letter No. 3-12 addressing the WARN Act's requirements in the context of the potential across-the board budgetcuts (known as sequestration) scheduled to occur on January 2, 2013 if Congress fails to act. DOL concluded that it is neither necessary nor appropriate for Federal contractors to provide WARN Act notice to employees 60 days in advance of the potential sequestration because of uncertainty about whether sequestration will occur and, if it did, what effect it would have on particular contracts, among other factors: In reaching this conclusion, DOL explained that giving notice in these circumstances would waste States' resources in undertaking employment assistance activities where none are needed and creating unnecessary anxiety and uncertainty for workers.
Despite DOL's guidance, some contractors have indicated they are still considering issuing WARN ACt notices, and some have inquired about whether Federal contracting agencies would cover WARN Act-related costs in connection with the potential sequestration. To further minimize the potential for waste and disruption associated with the issuance of unwarranted layoff notices; this memorandum provides guidance regarding-the allowability of certain liability and litigation costs associated with WARN Act compliance. Specifically, if (1) sequestration occurs and an agency terminates or modifies a contract that necessitates that the contractor order a plant closing or mass layoff ofa type subject to WARN Act requirements, and (2) that contractor has followed a course of action consistent with DOL guidance; then any resulting employee· compensation costs for WARN Act liability as determined by a court, as well as attorneys' fees and other litigation costs (irrespective of litigation outcome), would qualify as allowable costs and be covered by the contracting agency, if otherwise reasonable and allocable.
This guidance does not alter existing rights, responsibilities, obligations, or limitations under individual contract provisions or the governing cost principles set forth in the Federal Acquisition Regulation (FAR) and other applicable law. Thus, agencies may treat as allowable other costs potentially associated with sequestration, including WARN Act-related costs arising under circumstances not specified in this guidance, based on the usual cost principles of allocability, allowability, and reasonableness as set forth in the FAR.
On the one hand, we have 0bama stumping the speech that he is for the middle class; that he wants to build the economy from the middle class out. On the other hand, we have 0bama telling contractors to ignore the law saying you have to warn workers that they might be getting laid-off. And that the government will pick up the tab for any lawsuits filed by laid-off workers because the companies didn't let them know 60 days before they were laid-off.
We all know that government picking up the tab for anything means that tax payers - which include the currently working and tax paying workers who will be the future laid-off workers - will be paying for this. We also know that any company that does not follow the 'memorandums' can face retaliation in form of the Dept of Labor, or even DOJ, making conducting future business difficult for them. This is an underhanded deal to make the unemployment numbers look better so 0bama will get votes.
An extremely cruel result of this is that the lay offs will fall on January 2nd. Instead of being able to plan for their impending lay-off, employees will be caught unaware. I'll spell it out for those who don't see the cruelty. It's January 2nd - after Christmas. Workers, who may not be aware that 0bama is strongly encouraging their employers not to warn them that they might be laid-off, will be thinking they have a job to return to after Christmas. Now, how is that for compassion?
Merry Christmas and Happy New Year from 0bama