Text: H.R.3042 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in House (06/25/2009)


111th CONGRESS
1st Session
H. R. 3042


To amend the Worker Adjustment and Retraining Notification Act to minimize the adverse effects of employment dislocation, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

June 25, 2009

Mr. George Miller of California (for himself, Mr. McHugh, Ms. Woolsey, and Ms. Kaptur) introduced the following bill; which was referred to the Committee on Education and Labor


A BILL

To amend the Worker Adjustment and Retraining Notification Act to minimize the adverse effects of employment dislocation, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Forewarn Act”.

SEC. 2. Amendments to the WARN Act.

(a) Definitions.—

(1) EMPLOYER, PLANT CLOSING, AND MASS LAYOFF.—Paragraphs (1) through (3) of section 2(a) of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101(a)(1)–(3)) are amended to read as follows:

“(1) the term ‘employer’ means any business enterprise that employs 75 or more employees and includes any parent corporation of which such business enterprise is a subsidiary;

“(2) the term ‘plant closing’ means the permanent or temporary shutdown of a single site of employment, or of one or more facilities or operating units within a single site of employment, which results in an employment loss at such site, during any 30-day period, for 25 or more employees;

“(3) the term ‘mass layoff’ means a reduction in force at a single site of employment which results in an employment loss at such site, during any 30-day period, for 25 or more employees.”.

(2) SECRETARY OF LABOR.—

(A) DEFINITION.—Paragraph (8) of such section is amended to read as follows:

“(8) the term ‘Secretary’ means the Secretary of Labor or a representative of the Secretary of Labor.”.

(B) REGULATIONS.—Section 8(a) of such Act (29 U.S.C. 2107(a)) is amended by striking “of Labor”.

(3) CONFORMING AMENDMENTS.—

(A) NOTICE.—Section 3(d) of such Act (29 U.S.C. 2102(d)) is amended by striking out “, each of which is less than the minimum number of employees specified in section 2(a)(2) or (3) but which in the aggregate exceed that minimum number,” and inserting “which in the aggregate exceed the minimum number of employees specified in section 2(a)(2) or (3)”.

(B) DEFINITIONS.—Section 2(b)(1) of such Act (29 U.S.C. 2101(b)(1)) is amended by striking “(other than a part-time employee)”.

(b) Notice.—

(1) NOTICE PERIOD.—

(A) IN GENERAL.—Section 3 of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2102) is amended by striking “60-day period” and inserting “90-day period” each place it appears.

(B) CONFORMING AMENDMENT.—Section 5(a)(1) of such Act (29 U.S.C. 2104(a)(1)) is amended in the matter following subparagraph (B), by striking “60 days” and inserting “90 days”.

(2) RECIPIENTS.—Section 3(a) of such Act (29 U.S.C. 2102(a)) is amended—

(A) in paragraph (1), by striking “or, if there is no such representative at that time, to each affected employee; and” and inserting “and to each affected employee;”; and

(B) by redesignating paragraph (2) as paragraph (3) and inserting after paragraph (1) the following:

“(2) to the Secretary and the Governor of the State where the plant closing or mass layoff is to occur; and”.

(3) NOTICE EXCUSED WHERE CAUSED BY TERRORIST ATTACK.—Section 3(b)(2) of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2102(b)(2)) is amended by adding at the end the following:

“(C) No notice under this Act shall be required if the plant closing or mass layoff is due directly to a terrorist attack on the United States.”.

(4) CONTENT OF NOTICE.—Section 3 of such Act (29 U.S.C. 2102) is further amended by adding at the end the following:

“(e) Content of Notices.—An employer who is required to provide notice as required under subsection (a) shall include—

“(1) in each notice required under such subsection—

“(A) a statement of the number of affected employees;

“(B) the reason for the plant closing or mass layoff;

“(C) the availability of employment at other establishments owned by the employer;

“(D) a statement of each employee’s rights with respect to wages, severance and employee benefits; and

“(E) a statement of the available employment and training services provided by the Department of Labor; and

“(2) in each notice required under such subsection except for the notice provided to individual employees, the names, addresses, and occupations of the affected employees.”.

(5) INFORMATION REGARDING BENEFITS AND SERVICES AVAILABLE TO WORKERS AND DOL NOTICE TO CONGRESS.—Section 3 of such Act (29 U.S.C. 2102) is further amended by adding at the end the following:

“(f) Information regarding benefits and services available to employees.—Concurrent with or immediately after providing the notice required under subsection (a)(1), an employer shall provide affected employees with information regarding the benefits and services available to such employees, as described in the guide compiled by the Secretary under section 13.

“(g) Access of rapid response teams.—An employer who is required to provide notice shall permit, during work hours, reasonable on-site access to any Federal, State, or local rapid response team responsible for providing reemployment, training, and related services to affected employees.

“(h) DOL Notice to Congress.—As soon as practicable and not later than 15 days after receiving notification under subsection (a)(2), the Secretary of Labor shall notify the appropriate Senators and Members of the House of Representatives who represent the area or areas where the plant closing or mass layoff is to occur.”.

(c) Enforcement.—

(1) AMOUNT.—Section 5(a)(1) of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2104(a)(1)) is amended—

(A) in subparagraph (A)—

(i) by striking “back pay for each day of violation” and inserting “two days’ pay multiplied by the number of calendar days for which the employer was required but failed to provide notice before such closing or layoff”; and

(ii) in clause (ii), by striking “and” at the end thereof;

(B) by redesignating subparagraph (B) as subparagraph (C);

(C) by inserting after subparagraph (A) the following:

“(B) interest on the amount described in subparagraph (A) calculated at the prevailing rate; and”; and

(D) by striking the matter following subparagraph (C) (as so redesignated).

(2) CONFORMING AMENDMENT.—Section 5(a)(3) of such Act (29 U.S.C. 2104(a)(3)) is amended by inserting “, the Secretary of Labor, or the Governor” after “unit of local government”.

(3) EXEMPTION.—Section 5(a)(4) of such Act (29 U.S.C. 2104(a)(4)) is amended by striking “reduce the amount of the liability or penalty provided for in this section” and inserting “reduce the amount of the liability under paragraph (1) and reduce the amount of the penalty provided for in paragraph (3)”.

(4) ADMINISTRATIVE COMPLAINT.—Section 5(a)(5) of such Act (29 U.S.C. 2104(a)(5)) is amended—

(A) by striking “may sue” and inserting “may,”;

(B) by inserting after “both,” the following: “(A) file a complaint with the Secretary alleging a violation of section 3, or (B) bring suit”; and

(C) by adding at the end thereof the following new sentence: “A person seeking to enforce such liability may use one or both of the enforcement mechanisms described in subparagraphs (A) and (B).”.

(5) ACTION BY THE SECRETARY.—Section 5 of such Act (29 U.S.C. 2104) is amended—

(A) by redesignating subsection (b) as subsection (d); and

(B) by inserting after subsection (a) the following new subsections:

“(b) Action by the Secretary.—

“(1) ADMINISTRATIVE ACTION.—The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 3 by an employer in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207).

“(2) SUBPOENA POWERS.—For the purposes of any investigation provided for in this section, the Secretary shall have the subpoena authority provided for under section 9 of the Fair Labor Standards Act of 1938 (29 U.S.C. 209).

“(3) CIVIL ACTION.—The Secretary may bring an action in any court of competent jurisdiction to recover on behalf of an employee the backpay, interest, benefits, and liquidated damages described in subsection (a).

“(4) SUMS RECOVERED.—Any sums recovered by the Secretary on behalf of an employee under subparagraphs (A), (B), and (D) of section 5(a)(1) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each employee affected. Any such sums not paid to an employee because of inability to do so within a period of 3 years, and any sums recovered by the Secretary under subparagraph (C) of section 5(a)(1), shall be credited as an offsetting collection to the appropriations account of the Secretary of Labor for expenses for the administration of this Act and shall remain available to the Secretary until expended.

“(5) ACTION TO COMPEL RELIEF BY SECRETARY.—The district courts of the United States shall have jurisdiction, for cause shown, over an action brought by the Secretary to restrain the withholding of payment of back pay, interest, benefits, or other compensation, plus interest, found by the court to be due to employees under this Act.

“(c) Limitations.—

“(1) LIMITATIONS PERIOD.—An action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.

“(2) COMMENCEMENT.—In determining when an action is commenced under this section for the purposes of paragraph (1), it shall be considered to be commenced on the date on which the complaint is filed.

“(3) LIMITATION ON PRIVATE ACTION WHILE ACTION OF SECRETARY IS PENDING.—If the Secretary has instituted an enforcement action or proceeding under subsection (b), an individual employee may not bring an action under subsection (a) during the pendency of the proceeding against any person with respect to whom the Secretary has instituted the proceeding.”.

(d) Posting of notices; penalties.—Section 11 of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101 note) is amended to read as follows:

“SEC. 11. Posting of notices; penalties.

“(a) Posting of notices.—Each employer shall post and keep posted in conspicuous places upon its premises where notices to employees are customarily posted a notice to be prepared or approved by the Secretary setting forth excerpts from, or summaries of, the pertinent provisions of this chapter and information pertinent to the filing of a complaint.

“(b) Penalties.—A willful violation of this section shall be punishable by a fine of not more than $500 for each separate offense.”.

(e) Non-waiver of rights and remedies; Information regarding benefits and services available to employees.—Such Act is further amended by adding at the end the following:

“SEC. 12. Rights and remedies not subject to waiver.

“(a) In general.—The rights and remedies provided under this Act (including the right to maintain a civil action) may not be waived, deferred, or lost pursuant to any agreement or settlement other than an agreement or settlement described in subsection (b).

“(b) Agreement or settlement.—An agreement or settlement referred to in subsection (a) is an agreement or settlement negotiated by the Secretary, an attorney general of any State, or a private attorney on behalf of affected employees.

“SEC. 13. Information regarding benefits and services available to workers.

“The Secretary of Labor shall maintain a guide of benefits and services which may be available to affected employees, including unemployment compensation, trade adjustment assistance, COBRA benefits, and early access to training and other services, including counseling services, available under the Workforce Investment Act of 1998. Such guide shall be available on the Internet website of the Department of Labor and shall include a description of the benefits and services, the eligibility requirements, and the means of obtaining such benefits and services. Upon receiving notice from an employer under section 3(a)(2), the Secretary shall immediately transmit such guide to such employer.”.

SEC. 3. Effective date.

Except as otherwise provided in this Act, the provisions of this Act, and the amendments made by this Act, shall take effect on the date of the enactment of this Act.

SEC. 4. Authorization of Appropriations.

In addition to funds authorized to be appropriated for the general enforcement of the Worker Adjustment and Retraining Notification Act, there is authorized to be appropriated to the Secretary of Labor such additional sums as may be necessary for the additional enforcement authority authorized by the amendments made by this Act.