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WISCONSIN ADMINISTRATIVE CODE
DEPARTMENT OF WORKFORCE DEVELOPMENT
CHAPTER DWD 279. BUSINESS CLOSING AND MASS LAYOFF
Date:
08/31/2009
Document:
DWD 279.08 Exceptions.
An employer is not liable for failure to give notice if the department, upon complaint, determines the business closing or mass layoff is caused by any of the following:
(1) A strike or a lockout not intended to evade the requirements of s. 109.07, Stats., including but not limited to loss of employment for nonstriking employees who lose work with an employer because of a strike.
(2) The sale of all or part of an employer's business, if the purchaser agrees, in writing, as part of the purchase agreement to hire substantially all of the affected employees with not more than a 6 month break in employment.
(3) (a) The relocation of all or part of an employer's business within a reasonable commuting distance, if the employer offers to transfer or hire substantially all of the affected employees with not more than a 6-month break in employment.
(b) Offers to transfer shall be considered a relocation under this subsection if the employee receives a bona fide transfer offer to an employment site owned and operated by a related enterprise. If the new employment site is within a reasonable commuting distance, the relocation exception will apply, regardless of whether the employer offers to compensate the affected employee for relocation costs. However, an employer's offer to pay relocation costs may make a more distant site equivalent to one within a reasonable commuting distance for purposes of this subsection.
(c) Under this subsection, a "reasonable commuting distance" shall be presumed to be a distance of less than 50 miles, unless an affected employee has already been commuting 50 miles or greater on a voluntary basis prior to the relocation or indicates in writing that he or she is willing to commute 50 miles or more under a relocation. On a case by case basis, the department may determine that a commuting distance of less than 50 miles is not reasonable if industry practice or local conditions, such as climate, geographic accessibility, the quality of roads, customary available transportation, including public transportation, and travel time, so warrant.
(4) (a) The completion of a particular project, activity or undertaking or work of a specific duration, including seasonal work if the affected employees were hired with the understanding that their employment was limited to the duration of the work or project.
(b) For the purposes of this paragraph, an employer is not required to provide notice to agricultural, construction or other employees whose work is clearly identified as seasonal but not recurring, or who are hired for harvesting, processing, or for work limited to a particular project.
(c) The department shall consider usual and customary employment practices of the industry or locality, employment contracts or collective bargaining agreements in determining whether the exemption under this paragraph applies to a particular situation.
(d) A particular project, activity or undertaking or work will be considered to be of a specific duration where employees understand that, upon completion of a particular project, activity, undertaking or work, their employment will cease. There is no requirement that a specific termination date be known or communicated to employees.
(e) Whether affected employees understand at the time of hire that their employment was for a particular project, activity or undertaking, or work of a specific duration, shall be determined by reference to employment contracts, collective bargaining agreements or employment practices of an industry or a locality. The burden of proof will be the employer's to show that the temporary nature of the project or facility was clearly understood.
(5) Business circumstances that were not foreseeable when the notice would have been timely given.
(a) Factors that the department shall consider in determining whether the exemption under this paragraph applies include without limitation by enumeration a strike or lockout at a major supplier of the employer, a government ordered closing of an employment site without prior notice, the unexpected termination of a major contract the employer has with a principal client or customer, or an employer's sudden inability to obtain sufficient supplies to be used in production at a competitive cost.
(b) For purposes of this paragraph sudden, dramatic or unexpected events, are considered not foreseeable.
(6) A natural or man-made disaster beyond the control of the employer.
(a) For purposes of this paragraph an employer must be able to demonstrate that its business closing or mass layoff is a direct result of a natural or man-made disaster.
(b) Where a business closing or mass layoff is an indirect result of a natural or man-made disaster this exception does not apply, but the unforeseeable business circumstances exception in sub. (5) may apply.
(7) A temporary cessation of business operations, if the employer recalls the affected employees on or before the 60th day beginning after the cessation.
(8) (a) At the time the 60-day notice would have been required, the employer was actively seeking capital or business to prevent or postpone indefinitely the closing or layoff and the employer reasonably believed both that it had a realistic opportunity of obtaining the necessary capital or business and that giving notice would prevent the employers' action from succeeding.
(b) Upon receipt of a complaint concerning an employers' failure to give notice under this subsection, the department shall request from and the employer shall provide a written chronological record of those steps taken at or shortly before the time notice would have been required, which shall include the following:
1. Written requests for loans of capital to individuals or lending institutions.
2. Written replies granting or denying requests for loans of capital from individuals or lending institutions. If an offer for a loan or credit is rejected by the employer, the employer must state to the department the reasons, in writing for refusing the offer.
3. Evidence that the employer sought financing or refinancing through the issuance of stocks, bonds or other methods of internally generated financing or sought additional money, credit or business through any other commercially reasonable method.
4. Evidence that the capital or business sought was sufficient, if obtained, to have enabled the employer to avoid or postpone the closing or mass layoff.
5. Evidence that an employer's business source would not do business with a troubled company or a company whose workforce would be looking for other jobs.
(c) All records, individual documents or other material submitted under this paragraph shall be notarized by the employer as required by the department.
(d) The employer shall provide to the department an affidavit verifying the content of the notarized documents.
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