Historical statistics show that more layoffs and discharges occur in December and January than any other time of the year. Here are the top dos and don'ts that employers should take into consideration before terminating employees:

• Determine whether the affected employees are covered by a collective bargaining agreement and, if so, whether the agreement limits the manner in which the employer may conduct layoffs or otherwise discharge employees.
• Do decide if the Worker Adjustment and Retraining Notification (WARN) Act's 60-Day Notice is Required.

Whether a 60-Day Notice is required under the WARN Act will depend on the size of the employer's workforce and the number of employees to be laid off. The Act applies to employers that have 100 or more employees excluding part-time employees or 100 or more employees who work in aggregate at least 4,000 hours per week (excluding overtime hours). If the WARN Act applies, the employer must give 60 days' advance written notice of the pending layoff to: (1) either the union if it represents the employees or the employees themselves if there is no union representation; (2) the state's dislocated worker unit and (3) the governmental unit to which employers paid the most taxes the year before the layoff or reduction if:

• The layoff at a single site of employment results in the employment loss of at least 1/3 of the employees and at least 50 or more employees (excluding part-time) for 30 days or more; or
• The layoff at the single site of employment results in the loss of employment for 500 or more employees (excluding part-time employees) for at least 30 days.

To determine whether either of these thresholds apply, employers must include in their calculation any layoffs in the last 90 days and any layoffs anticipated in the next 90 days. Determining whether the 60-Day Notice is required is crucial because violations can subject the employer to a penalty up to $500.00 per day and back pay and benefits for each employee. It is important to keep in mind that this is only a general summary of the applicability of the WARN Act to layoff and not plant closures. There are numerous other provisions that may impact the applicability of the WARN Act. Therefore, consulting a labor lawyer is strongly recommended.