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April 29, 1993



The opinion of the court was delivered by: WILLIAM T. HART

On February 14, 1992, plaintiff Automobile Mechanics' Local 701 of the International Association of Machinists and Aerospace Workers filed this action on behalf of its members. Plaintiff complains that defendants Santa Fe Terminal Services, Inc. and the Atchison, Topeka and Santa Fe Railway Company laid off or terminated the employment of plaintiff's members without giving 60 days' notification as required by the Worker Adjustment and Retraining Notification Act ("WARN"), 29 U.S.C. §§ 2101-09. The layoff allegedly occurred on February 16, 1991. Defendants' Fifth Affirmative Defense is that this suit is barred because filed beyond the applicable statute of limitations. Presently pending is plaintiff's motion to strike the Fifth Affirmative Defense.

 Under WARN, "an employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such an order." 29 U.S.C. § 2102(a). *fn1" A "plant closing" is the permanent or temporary shutdown of a single site of employment which results in an employment loss to a certain minimum number of employees. Id. § 2101(a)(2). A "mass layoff" is a reduction in force that is not a result of a plant closing and which results in an employment loss to a certain minimum number of employees. Id. § 2101(a)(3). An employer who orders a plant closing or mass layoff without giving proper notice shall be liable to employees suffering an employment loss for backpay and lost benefits for each day of violation up to 60 days. Id. § 2104(a)(1). "The term 'employment loss' means (A) an employment termination, other than a discharge for cause, voluntary departure, or retirement, (B) a layoff exceeding 6 months, or (C) a reduction in hours of work of more than 50 percent during each month of any 6-month period." Id. § 2101(a)(6). A termination immediately qualifies as an employment loss (id. § 2101(a)(6)(A)), but a layoff must last for more than six months to qualify as an employment loss (id. § 2101(a)(6)(B)). Kildea v. Electro Wire Products, Inc., 775 F. Supp. 1014, 1019 (E.D. Mich. 1991); Jones v. Kayser-Roth Hosiery, Inc., 748 F. Supp. 1276, 1284 (E.D. Tenn. 1990). An employment loss is a necessary element of a damages claim under WARN.

 WARN provides for civil actions for damages in federal court. *fn2" Id. § 2104. However, the Act contains no express statute of limitations. With respect to the statute of limitations defense, the parties raise two issues. First, they disagree as to what limitation period should be borrowed for WARN actions. Defendants contend that the six-month limitation period of § 10(b) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(b), should be borrowed. Plaintiff contends a limitation period should be borrowed from state law, either the 10-year period for written contracts (735 ILCS 5/13-206), the five-year limitation period for oral contracts (735 ILCS 5/13-205), or the five-year catchall provision (735 ILCS 5/13-205). Alternatively, plaintiff argues the federal four-year catchall provision (28 U.S.C. § 1658) should apply. The parties' other point of disagreement is when a WARN claim accrues. Defendants contend it accrues at the time the employees are first laid off and when it first becomes apparent that the layoff will last for more than six months. Plaintiff contends that there is no accrual for a layoff until the layoff has lasted more than six months and qualifies as an employment loss. This lawsuit was filed just under 12 months after the alleged termination or layoff. The statute of limitations defense can only succeed if (1) the six-month limitation period applies and (2) the claim accrues (a) at the time of the layoff or (b) when it first becomes apparent that the layoff will last for more than six months.

 The accrual issue will be considered first. Plaintiff pleads in the alternative. It pleads that a plant closing occurred and alternatively pleads that a mass layoff occurred. Defendants mistakenly distinguish between a plant closing and mass layoff on the basis that the former is a termination of employment while the latter includes the possibility of a recall. That is not how the statute distinguishes the two. Under the statute, the primary distinction is that a plant closing involves the shutting down of an entire site (or an entire facility or operating unit within a single site), *fn3" whereas a mass layoff involves the termination or layoff of less than an entire site involving a certain minimum percentage and/or number of employees. *fn4" Under the statute a plant closing can be "permanent or temporary." 29 U.S.C. § 2101(a)(2). Both plant closings and mass layoffs are defined as having to involve employment losses. Since employment losses are defined as being either a termination (id. § 2101(a)(6)(A)) or a layoff exceeding six months (id. § 2101(a)(6)(B)), both plant closings and mass layoffs can involve terminations or layoffs. Such a conclusion is also consistent with the regulations promulgated by the Secretary of Labor. The definition of plant closing reads in part: "A 'temporary shutdown' triggers the notice requirement only if there are a sufficient number of terminations, layoffs exceeding 6 months, or reductions in hours of work as specified under the definition of 'employment loss.'" 20 C.F.R. § 639.3(b).

 Labeling the action allegedly taken by defendants as a plant closing or mass layoff does not determine whether it involved the termination of employment or a layoff from employment. In the amended complaint plaintiff refers to the employees being "laid off" (Am. Comp. PP 1, 7) and a "layoff" being caused (Id. P 8). It also refers to the "loss" of employees (P 8). In its briefs, plaintiff contends a layoff occurred. Defendants contend there was a termination of employment. Whether the action in dispute was a termination of jobs or a layoff cannot be resolved on the pleadings. Plaintiff has pleaded one or both occurred. Defendants can plead in their answer that there was only a termination. Resolution of this factual dispute would have to await summary judgment, a trial, or another appropriate proceeding. In determining whether defendants' statute of limitations defense should be stricken, both of the alternatives must be considered.

 A termination results in an immediate employment loss. If the employees' jobs were terminated, their claim accrued on the alleged date of termination, February 16, 1991. If a six-month statute of limitations applies, this lawsuit would (absent tolling) *fn5" be untimely since not filed until February 14, 1992.

 The accrual of the claim, however, would be different if a layoff occurred. A necessary element of a damages claim under the statute is an employment loss and there is no employment loss until the layoff continues for more than six months. See Kildea, 775 F. Supp. at 1019; Jones, 748 F. Supp. at 1284. Therefore, a claim based on a layoff cannot accrue until employees have been laid off for more than six months. Defendants do not contend that the job action in dispute occurred any earlier than February 16, 1991. If that action was a layoff, the WARN claim did not accrue until August 16, 1991 at the earliest. Even if a six-month limitation period applies, plaintiff's claim was timely when filed on February 14, 1992. A defense is not available to the extent plaintiff's claim is based on a layoff of employees.

 Because it is possible that plaintiff's claim is actually based on a termination of employment, it still must be considered what statute of limitations applies. The defense can only be stricken in its entirety if a limitation period of one year or more applies.

 Only three cases have considered the appropriate statute of limitations for WARN claims. Two of those cases borrow the six-month limitation period of the NLRA, 29 U.S.C. § 160(b). See Newspaper & Mail Deliverers' Union of New York & Vicinity v. United Magazine Co., 809 F. Supp. 185, 188-92 (E.D.N.Y. 1992); Staudt v. Glastron, Inc., 1993 U.S. Dist. LEXIS 3090 (W.D. Tex. Feb. 23, 1993). The other case borrows a six-year limitation period from state contract law. See Wallace v. Detroit Coke Corp., 818 F. Supp. 192, 1993 U.S. Dist. LEXIS 4497, 1993 WL 105481 *2-3 (E.D. Mich. April 8, 1993).

 The ordinary rule is that, when Congress is silent as to a statute of limitations, the state time limitation most analogous to the case at hand is borrowed. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 115 L. Ed. 2d 321, 111 S. Ct. 2773, 2778 (1991). There are exceptions to the general rule, but the general rule is not to be lightly abandoned. Id. "Federal borrowing [is] 'a closely circumscribed exception,' to be made 'only when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.'" Id. (quoting Reed v. United Transportation Union, 488 U.S. 319, 324, 109 S. Ct. 621, 102 L. Ed. 2d 665 (1989)).

 A three-step inquiry is to be applied in determining which statute of limitations should be borrowed. First, it must be determined whether a uniform statute of limitations is to be selected. Lampf, 111 S. Ct. at 2779. If it is determined that a uniform statute of limitations is desirable, it must then be determined whether the source of that standard should be state or federal, with particular weight being accorded to the geographical character of the claim. Id. "Finally, even where geographical considerations counsel federal borrowing, the aforementioned presumption of state borrowing requires that an analogous federal source truly affords a 'closer fit' with the cause of action at issue than does any available state-law source. Although considerations pertinent to this determination will necessarily vary depending upon the federal cause of action and the available state and federal analogues, such factors as commonality of purpose and similarity of elements will be relevant." Id. The three-step process is a "hierarchical inquiry." Id. at 2778; Kahn v. Kohlberg, Kravis, Roberts & Co., 970 F.2d 1030, 1033 (2d Cir.), cert. denied, 121 L. Ed. 2d 432, 113 S. Ct. 494 (1992). There is no need to consider each additional step of the inquiry unless the previous step is first found to point to borrowing a federal limitation period. See Lampf, 111 S. Ct. at 2779.

 The Supreme Court has said that: "Where a federal cause of action tends in practice to 'encompass numerous and diverse topics and subtopics,' such that a single state limitations period may not be consistently applied within a jurisdiction, we have concluded that the federal interests in predictability and judicial economy counsel the adoption of one source, or class of sources, for borrowing purposes." Id. (quoting Wilson v. Garcia, 471 U.S. 261, 273, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985)). For example, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, incorporates a large variety of predicate acts and thus could be analogized to numerous state causes of action. See Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 97 L. Ed. 2d 121, 107 S. Ct. 2759 (1987). Claims under 42 U.S.C. § 1983 are another example. See Wilson, supra. Here, however, there is basically only one type of claim, a damages claim for lost wages and benefits for failure to provide proper notice. *fn6" There should not be a problem of having too many analogies to choose from under state law.

 The second step also does not point to borrowing a uniform federal limitation period. When claims may be multistate in nature, then the geographical inquiry of the second step supports adopting a federal standard. See Lampf, 111 S. Ct. at 2779 (quoting Agency Holding Corp., 483 U.S. at 147). WARN claims, by definition, are limited to a single site. See 29 U.S.C. § 2101(a)(2)-(3) (defining "plant closing" & "mass layoff"). The lawsuit, however, need not be filed in the district where the site is located, but may be filed in any district where the employer transacts business. Id. § 2104(a)(5). Still, choice of law rules would likely point to borrowing the law of the site since that would be the place of the injury, and probably the place of the unlawful action as well. Therefore, it is unlikely that a WARN plaintiff would be able to forum shop for a locale with the most advantageous statute of limitations; the law of the site of the layoff would likely be chosen no matter where the suit happened to be filed. Also, difficult questions of which state law to choose are unlikely to arise since there will only be one site, not conduct occurring in multiple locations or claims based on unlawful interstate transactions. It is also possible that an employer will conduct layoffs at a number of sites on the same day. Assuming state law is to be borrowed and suits arise from a number of different sites in different states, each of the individual suits might have a ...

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