Overview of Wisconsin’s Business Closing and Mass Layoff Law

Background
Under current Wisconsin law, Section 109.07 of the Wisconsin Statutes and Chapter DWD 279 of the Wisconsin Administrative Code combine to create Wisconsin’s Business Closing and Mass Layoff (WBCML) Law. Some version of WBCML law has been in effect since 1975. In 1988, the U.S. Congress passed the Worker Adjustment and Retraining Notification (WARN) Act which is similar to WBCML law. The purpose of both the state and federal notice laws is to provide workers with 60 days notice to help them prepare for the transition between their current employment and new employment.

While there are many similarities between the federal and state laws, there are several differences as well, including different circumstances that trigger the law and different notice requirements. Employers must comply with both laws if both apply.

The following information is intended only as a brief overview of Wisconsin’s Business Closing and Mass Layoff Law and is not intended as an official statement of interpretation of the law.

When Employer Notice Must be Given
Employers generally are covered by the WBCML law if they employ 50 or more persons in the State of Wisconsin and either

  1. Permanently or temporarily shut down an employment site, facility, or operating unit within a single municipality that affects 25 or more employees
  2. OR

  3. Make a reduction in the workforce which affects
    • at least 25% of the workforce or 25 employees, whichever is greater or
    • at least 500 employees
    A workforce reduction may be a layoff extending beyond 6 months or the reduction of work hours by more than 50% during each month in any 6-month period.

When determining who is an “affected employee,” “new” and “low-hour” employees are excluded. “New” employees have been employed by the business for fewer than 6 of the 12 months preceding the date on which notice is required. “Low-hour” employees average fewer than 20 hours per week.

Two or more groups of employees who are affected during a 90-day period may be considered in aggregate when determining whether the business closing or mass layoff thresholds have been met.

Covered employers must provide written notice 60 calendar days in advance of a business closing or mass layoff or reduction in hours.

Conditional Notice
An employer may provide notice that is contingent on the occurrence or nonoccurrence of an event, such as the renewal of a contract (excluding labor contracts).

Voluntary Notice
An employer is encouraged to provide notice, even in situations which do not technically constitute a business closing or mass layoff as defined by the WBCML law. Whether a dislocation event constitutes a business closing or mass layoff under the law will depend on the circumstances of the event and not how the event was characterized by an employer in any written notice.

Notice must be provided to:

  1. The Department of Workforce Development, Dislocated Worker Unit, P.O. Box 7972, Madison, WI 53707;
  2. Any affected employee (including new or low-hour employees);
  3. Any collective bargaining unit representative of any affected employee; and
  4. The highest official of the municipality in which the affected employment site is located.

Contents of the Notice
Information provided in the notice is to be based on the best information available to the employer at the time the notice is served. Errors in the information provided due to a subsequent change in event or minor inadvertent errors are not to be considered a violation of WBCML law.

Notice to the State’s Dislocated Worker Unit and the highest official of the municipality must include:

Notice to the each affected employee must include:

If at the time the notice is given, the employer is unable to identify which employee will lose employment due to the elimination of a particular position, notice must be provided to the employee currently holding that position.

Notice to the collective bargaining representative of an affected employee must include:

Delivery of Notice
An employer may use any reasonable method of delivery including, first class mail and personal delivery.

Extension of Notice
An updated notice of a delayed business closing or mass layoff must be issued within a reasonable time after the employer learns there will be a postponement or delay beyond the date announced in the original notice. The updated notice is directed to the same recipients as the original and must include a reference to the original notice, the new date and the reasons for the postponement or change in date.

Consequences for Failing to Provide Timely Notice
If an employer does not provide notice when it is required, affected employees may recover up to 60 days of back pay and benefits for each day that notice was required but not provided. Additionally, if an employer fails to give timely notice to the highest official of a municipality, the State may assess a penalty against the employer of not more than $500 for each day that notice was required but not provided.

A complaint against the employer for failure to provide timely notice of a business closing or mass layoff may be filed with the Department of Workforce Development by any affected employee, the highest official of any municipality in which the affected employment site is located, or the collective bargaining representative of any affected employee.

In the event a complaint is filed with the DWD’s Equal Rights Division, the employer will be asked to make available for inspection all notices and correspondence delivered to the affected employees, municipalities, collective bargaining representatives, and the State’s Dislocated Worker Unit, as well as any records used in connection with preparation and delivery of the notices. The employer may also be asked to provide time and payroll records in order to assess whether a violation occurred.

Exceptions to Notice Requirements
The WBCML law does not apply to:

Additional exceptions may occur in situations involving:

What to Expect After Filing Notice with the State

WBCML Law Resources

Maria Selsor
Labor Standards Investigation Section Supervisor
Wisconsin Department of Workforce Development
Equal Rights Division
Madison, WI
Telephone: (608) 267-2495
Email: ERinfo@dwd.wisconsin.gov
Web: http://dwd.wisconsin.gov/er/