The Right to Trial by Jury under the WARN Act

Outsourcing. Downsizing. Eliminating redundancy. The mass layoff is a phenomenon susceptible to endless labeling and relabeling, be it by epithet or euphemism, but under any name it represents a massive trauma for workers. Legislators are by no means insensitive to the economic—and political—dimensions of this trauma. In 1988, back when the bogeyman was not China but Japan, Congress tackled the issue with the Worker Adjustment and Retraining Notification Act (WARN Act), which requires firms above a certain size to provide notice before either a plant closing or a mass layoff. To encourage compliance, the Act allows for civil actions against employers who fail to give notice, with liability of up to sixty days’ backpay and lost benefits.

Unfortunately, when Congress passed the WARN Act, it neglected to specify the appropriate finder of fact for these lawsuits. In the absence of any express direction, the federal courts have been forced to grapple with whether a plaintiff bringing a civil action under the WARN Act has a Seventh Amendment right to demand a trial by jury. A convincing answer has yet to rise from the scrum—at present litigants are faced with a division of authority. This Comment seeks to resolve that division by using existing interpretations of the Act’s remedies to inform the Seventh Amendment analysis. On the basis of this analysis, the Comment concludes that WARN Act plaintiffs have a constitutional right to a jury trial.