Labor & Employment Law Section

By Andrew J. Henson

Federal law requires large employers issuing mass layoffs or plant closures to give employees 60 days advance written notice of an upcoming layoff provided that the layoffs occur at a “single site of employment”. The term “single site of employment” greatly limits the applicability of the WARN Act, but it has been given a broad definition when applied to “mobile workers”. But who is a mobile worker? Would this term include a traveling branch manager or salesperson?

The Worker Adjustment Retraining and Notification Act[1] (a.k.a. the WARN Act) requires large employers[2] to give employees 60 days’ advance written notice for plant closings and mass layoffs[3]. In 1988, Congress enacted this law “to provide notice of sudden, significant employment loss so that workers could seek alternative employment and their communities could prepare for the economic disruption of a mass layoff.”[4] However, qualifying layoffs must occur at a “single site of employment.” The regulatory definition of this term states that it “can refer to either a single location or a group of contiguous locations. Groups of structures which form a campus or industrial park, or separate facilities across the street from one another may be considered a single site of employment.”[5] Thus, each single site of employment must have enough qualifying layoffs to trigger the WARN Act. For example, Company X may lay off 49 people at its Raleigh campus and 49 people at its Greensboro campus, and it probably would not trigger the WARN Act requirement to provide 60 days advance written notice.

However, “mobile workers” are given a broader definition of “single site of employment”, allowing them to claim as their “single site of employment” a place which may be geographically removed from where they work on a daily basis. The regulation states in relevant part:

For workers whose primary duties require travel from point to point, who are outstationed, or whose primary duties involve work outside any of the employer’s regular employment sites . . . the single site of employment to which they are assigned as their home base, from which their work is assigned, or to which they report will be the single site in which they are covered for WARN purposes.

20 C.F.R. § 639.3(i)(6). The regulation, known as Subpart 6, has been the center of considerable litigation, primarily with respect to who qualifies as an “outstationed” or mobile employee due to the broader test for determining a single site of employment. Other circuits have recognized Subpart 6 to apply to traveling salesmen without a permanent office[6], and to towboat operators working along a 2,000 mile span of river[7]. On the other hand, remote construction workers working at a temporary jobsite were not found to be covered by Subpart 6.[8]

In Meson, the Fourth Circuit addressed whether traveling branch managers were “mobile workers” under Subpart 6. In that case, a sales representative/regional manager reported directly to the company’s corporate headquarters in Florida, performed significant travel, but had a small office located in Virginia where she supervised two employees. Meson argued that she should be considered an employee of the Florida headquarters under Subpart 6 since she received her orders from that location and spent a substantial amount of time traveling. The Fourth Circuit disagreed, finding that Meson was not truly a mobile worker noting that she managed two employees in Virginia and “[t]hough she traveled to visit clients in her region and reported to officials located at the Tampa office, her position was similar to that of most other branch managers who receive work assignments from, and report to, their company’s headquarters. Were we to construe subpart (6) to apply on these facts, every regional manager or chief executive could claim the corporate headquarters –in lieu of the office she manages-as her ‘single site of employment.’ ”[9] The court concluded that her single site of employment was her Virginia office. Soon thereafter, in In re Storehouse, Inc., a similar result was reached for an employee that telecommuted to the corporate headquarters from an office space in Richmond, Virginia.[10] There, the court went a step further and determined that having a fixed office location, even if used to perform work assigned from the corporate headquarters, was insufficient when combined with extensive travel to assimilate an employee to that of a mobile worker under Subpart 6. That is, having a physical office location used when not traveling for work established the single site of employment for that employee.

Accordingly, the question of how much traveling is sufficient to become a “mobile worker” under Subpart 6 is open-ended in the Fourth Circuit. At a minimum, a traveling employee must be more than a mere branch manager or have a fixed place of employment. However, the legal divisions in the space between “branch manager” and a job like a towboat driver, remains to be determined.

[1] 29 U.S.C. § 2101, et seq.,

[2] 29 U.S.C. § 2101, et seq.,

[3] Defined as layoffs constituting 50 or more employees and at least 33 percent of the same.

[4] Meson v. GATX Tech. Serv. Copr., 507 F.3d 803, 808 (4th Cir. 2007).

[5]  20 C.F.R. § 639.3(i)(1).

[6] Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139 (3d Cir. 1998).

[7] Wiltz v. M/G Transport Serv., Inc., 128 F.3d 957 (6th Cir. 1997).

[8] Bader v. Northern Line Layers, Inc., 503 F.3d 813, 819 (9th Cir. 2007).

[9] Meson v. GATX Tech Serv. Corp., 507F.3d 803, 810 (4th Cir. 2007).

[10] In re Storehouse, Inc., 2010 WL 4453849 (E.D.Va. 2010).