January 8, 2007, read first time and referred to Committee on Pensions and Labor.
First Regular Session 115th General Assembly (2007)
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SENATE BILL No. 130
A BILL FOR AN ACT to amend the Indiana Code concerning labor
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 22-6-5; (07)IN0130.1.1. -->
SECTION 1. IC 22-6-5 IS ADDED TO THE INDIANA CODE AS
CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
Chapter 5. Employer Notification Before Plant Closings and
Sec. 1. As used in this chapter, "affected employees" means
employees who may reasonably be expected to experience an
employment loss as a result of a proposed plant closing or mass
Sec. 2. (a) As used in this chapter, subject to subsection (b),
"employer" means an individual, a partnership, an association, a
limited liability company, a corporation, a business trust, a state or
local government or agency, or an agent or officer of any of those
entities, employing at least fifty (50) individuals in Indiana.
(b) The term does not include the federal government, a
corporation wholly owned by the federal government, or an Indian
Sec. 3. (a) As used in this chapter, subject to subsection (b),
"employment loss" means:
(1) an employment termination, other than:
(A) a discharge for cause;
(B) voluntary departure; or
(2) a layoff exceeding six (6) months; or
(3) a reduction in hours of work of more than fifty percent
(50%) during each month of a six (6) month period.
(b) The term does not include a closing or layoff that is the
result of the relocation or consolidation of part or all of an
employer's business if, before the closing or layoff:
(1) the employer offers to transfer the employee to a different
site of employment within a reasonable commuting distance
with a break in employment of not more than six (6) months;
(2) the employer offers to transfer the employee to any other
site of employment, regardless of distance, with a break in
employment of not more than six (6) months, and the
employee accepts the transfer within thirty (30) days after the
(A) the offer; or
(B) the closing or layoff.
Sec. 4. As used in this chapter, "mass layoff" means a reduction
of force that:
(1) is not the result of a plant closing; and
(2) results in employment loss at a single site of employment
during any thirty (30) day period for at least thirty-three
percent (33%) of the employees.
Sec. 5. As used in this chapter, "plant closing" means the
permanent or temporary shutdown of a single site of employment,
or one (1) or more facilities or operating units within a single site
of employment, if the shutdown results in employment loss at the
single site of employment during any thirty (30) day period for at
least twenty (20) employees.
Sec. 6. As used in this chapter, "political subdivision" has the
meaning set forth in IC 36-1-2-13.
Sec. 7. As used in this chapter, "regular rate" has the meaning
set forth in IC 22-2-2-4(k)(3).
Sec. 8. As used in this chapter, "representative" means an
exclusive representative of employees within the meaning of:
(1) Section 158(f) or 159(a) of the National Labor Relations
Act (29 U.S.C. 151 et seq.); or
(2) Section 152 of the Railway Labor Act (45 U.S.C. 151 et
Sec. 9. (a) This chapter does not apply to a plant closing or mass
layoff in the following cases:
(1) The closing is:
(A) of a temporary facility; or
(B) the result of the completion of a particular project or
the affected employees were hired with the understanding
that their employment was limited to the duration of the
facility, project, or undertaking.
(2) The closing or layoff constitutes a strike or lockout not
intended to evade the requirements of this chapter.
(b) An employer is not required to provide the written notice
under section 10 of this chapter when permanently replacing a
person who is considered to be an economic striker under the
National Labor Relations Act (29 U.S.C. 151 et seq.).
Sec. 10. (a) Except as provided in section 9(b) or 11 of this
chapter, an employer shall serve written notice of a plant closing
or mass layoff not later than sixty (60) days before the date of the
closing or layoff to:
(1) each representative of the affected employees or, if there
is no representative at the time of the notice, each affected
(2) the department of workforce development; and
(3) the chief elected official of each political subdivision within
which a plant closing or mass layoff is to occur.
(b) The mailing of notice to an employee's last known address
and the inclusion of the notice with the employee's paycheck are
both acceptable methods for fulfilling the employer's obligation to
give notice to each affected employee.
Sec. 11. (a) An employer is not required to provide the notice
required by section 10 of this chapter if:
(1) at the time that the notice would have been required:
(A) the employer was actively seeking capital or business
that, if obtained, would enable the employer to avoid or
postpone the plant closing or mass layoff; and
(B) the employer reasonably and in good faith believed
that giving the notice would have precluded the employer
from obtaining the needed capital or business;
(2) the closing or mass layoff is caused by business
circumstances that were not reasonably foreseeable as of the
time that the notice would have been required; or
(3) the closing or mass layoff is the result of a natural disaster.
(b) An employer shall give as much notice as is practicable
under the circumstances described in subsection (a), including a
brief statement of the basis for reducing the notice period.
Sec. 12. A layoff of more than six (6) months that at its outset
was announced as a layoff of six (6) months or less shall be treated
as an employment loss under this chapter, unless:
(1) the extension beyond six (6) months is the result of
business circumstances (including unforeseeable changes in
price or cost) not reasonably foreseeable at the time of the
initial layoff; and
(2) notice is given at the time that an extension beyond six (6)
months becomes reasonably foreseeable to the employer.
Sec. 13. Employment losses for more than one (1) group of
employees at a single site of employment, each of which is less than
the minimum number of employees specified in section 4 or 5 of
this chapter for a plant closing or a mass layoff, but that together
exceed that minimum number and occur within any ninety (90) day
period, are considered to be a plant closing or a mass layoff for
purposes of this chapter, unless the employer demonstrates that the
employment losses are:
(1) the result of separate and distinct actions and causes; and
(2) not an attempt by the employer to evade the requirements
of this chapter.
Sec. 14. (a) In the case of a sale of part or all of an employer's
(1) up to and including the effective date of the sale, the seller;
(2) after the effective date of the sale, the purchaser;
are responsible for providing the notice required by section 10 of
(b) Notwithstanding any other provision of this chapter, an
individual who is an employee of the seller as of the effective date
of a sale is considered an employee of the purchaser immediately
after the effective date of the sale for the purpose of receiving the
notice required by section 10 of this chapter.
Sec. 15. (a) As used in this section, "aggrieved employee" means
an employee who:
(1) experienced employment loss as a result of a plant closing
or mass layoff conducted by the employee's employer; and
(2) as a result of the employer's failure to give the notice
required by section 10 of this chapter, did not receive the
required notice, either directly or through the employee's
(b) If an employer violates this chapter, an aggrieved employee
may commence an action for the employee or on behalf of other
employees similarly situated, or both, in the circuit or superior
court of the county in which the violation is alleged to have
occurred or in which the employer transacts business.
(c) The court shall award the following to each aggrieved
employee who suffers an employment loss as a result of the plant
closing or mass layoff for which the employer failed to give notice
in violation of this chapter:
(1) Back pay for each day of violation at a rate of
compensation not less than the greater of:
(A) the average regular rate received by the employee
during the three (3) years before the date of the closing or
(B) the final regular rate received by the employee.
(2) Benefits under an employee benefit plan described in 29
U.S.C. 1002, including the cost of medical expenses incurred
during the employment loss that would have been covered
under an employee benefit plan if the employment loss had
(3) Costs and reasonable attorney's fees.
(d) The employer's liability under subsection (c) is calculated for
the period of the violation, up to a maximum of sixty (60) days, but
not more than fifty percent (50%) of the number of days that the
employee was employed by the employer.
(e) The amount for which an employer is liable under this
section to an aggrieved employee is reduced by the following:
(1) Wages paid by the employer to the employee for the period
of the violation.
(2) A voluntary and unconditional payment by the employer
to the employee that is not required by a legal obligation.
(3) A payment by the employer to a third party or trustee
(such as premiums for health benefits or payments to a
defined contribution pension plan) on behalf of and
attributable to the employee for the period of the violation.
(4) A monetary equivalent of the amount of service credited
to the employee for all purposes under a defined benefit
pension plan for the period of violation.
(f) An employer that violates this chapter with respect to the
notice required to be given to a political subdivision under section
10(a)(3) of this chapter commits a Class C infraction for each day
that the violation occurs, up to a maximum of sixty (60) days.
(g) It is a defense to a violation of this chapter that:
(1) the act or omission that was a violation of this chapter was
in good faith; and
(2) the employer had reasonable grounds for believing that
the act or omission was not a violation of this chapter.
(h) A court does not have the authority to enjoin a plant closing
or mass layoff for a violation of this chapter.
(i) The remedies provided for in this section are the exclusive
remedies for any violation of this chapter.
Sec. 16. (a) The rights and remedies provided to employees by
this chapter are in addition to, and not instead of, any other
contractual or statutory rights and remedies of the employees, and
are not intended to alter or affect those rights and remedies, except
that the period of notification required by this chapter runs
concurrently with any period of notification required by contract
or any other statute.
(b) A notice given by an employer that meets the requirements
of the federal Worker Adjustment and Retraining Notification Act
(29 U.S.C. 2101 et seq.) meets the requirements of this chapter.
Sec. 17. The commissioner of the department of workforce
development may adopt rules under IC 4-22-2 to implement this
chapter, including uniform standards by which employers may
provide for appropriate service of notice required by this chapter.
SOURCE: ; (07)IN0130.1.2. -->
SECTION 2. [EFFECTIVE UPON PASSAGE] (a)
Notwithstanding IC 22-6-5-17, as added by this act, the
commissioner of the department of workforce development shall
adopt any rules to implement IC 22-6-5, as added by this act, in the
same manner as emergency rules are adopted under
IC 4-22-2-37.1. Any rules adopted under this SECTION must be
adopted not later than June 1, 2007. A rule adopted under this
SECTION expires on the earlier of:
(1) the date the rule is adopted by the commissioner under
IC 4-22-2-24 through IC 4-22-2-36 to implement IC 22-6-5, as
added by this act; or
(2) July 1, 2008.
(b) This SECTION expires July 2, 2008.