January 8, 2007, read first time and referred to Committee on Labor and Employment.
First Regular Session 115th General Assembly (2007)
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HOUSE BILL No. 1132
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)IN1132.1.1. -->
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, "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:
(1) the federal government;
(2) a corporation wholly owned by the federal government; or
(3) an Indian tribe.
Sec. 3. (a) As used in this chapter, "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 an employment loss at a single site of
employment during any thirty (30) day period of at least
thirty-three percent (33%) of the employees.
Sec. 5. As used in this chapter, "municipality" has the meaning
set forth in IC 36-1-2-11.
Sec. 6. As used in this chapter, "plant closing" means the
permanent or temporary shutdown of:
(1) a single site of employment; or
(2) one (1) or more facilities or operating units within a single
site of employment;
if the shutdown results in an employment loss at the single site of
employment during any thirty (30) day period of at least twenty
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 152(4) 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 plant closing is:
(A) of a temporary facility; or
(B) the result of the completion of a particular project or
and the affected employees were hired with the understanding
that their employment was limited to the duration of the
facility, project, or undertaking.
(2) The plant closing or mass layoff constitutes a strike or
lockout not intended to evade the requirements of this
(b) An employer is not required to provide the written notice
required by 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) An employer shall serve written notice of a plant
closing or mass layoff not later than sixty (60) days before the date
of the plant closing or mass 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 executive of:
(A) each municipality; or
(B) in an unincorporated area, the county;
in which the plant closing or mass layoff is to occur.
(1) mailing of notice to an affected employee's last known
(2) inclusion of the notice with the affected employee's
is an acceptable method for fulfilling the employer's obligation to
give notice to each affected employee.
Sec. 11. (a) An employer is not required to provide the written
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 plant 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 plant closing or mass layoff is the result of a natural
(b) An employer shall give as much notice as is practicable
under 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 of the layoff 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 of the layoff
beyond six (6) months becomes reasonably foreseeable to the
Sec. 13. Employment losses of 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 6 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;
is responsible for providing the written notice required by section
10 of this chapter.
(b) Notwithstanding any other provision of this chapter, an
individual who is an employee of the seller as of the effective date
of the sale shall be considered an employee of the purchaser
immediately after the effective date of the sale for the purpose of
receiving the written 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 written
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 aggrieved employee or on behalf
of other employees similarly situated, or both, in a 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
employer's violation of this chapter:
(1) Back pay for each day of the 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 plant
closing or mass layoff; or
(B) the final regular rate received by the employee.
(2) Benefits under an employee welfare 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 the employee benefit plan if the employment
loss had not occurred.
(3) Costs and reasonable attorney's fees.
(d) An 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 amount equal to 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:
(1) a municipality; or
(2) in an unincorporated area, a county;
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
(g) It is a defense to a violation of this chapter that:
(1) the act or omission that constituted 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 authority to enjoin a plant closing or
mass layoff for a violation of this chapter.
(i) Except as provided in section 16 of this chapter, 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:
(1) in addition to, and not instead of, any other contractual or
statutory rights and remedies of the employees; and
(2) not intended to alter or affect those other rights and
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.