provide a statutory remedy, it cannot be considered a civil penalty or a forfeiture. See Wholesale & Retail Food Distribution Local 63 v. Santa Fe Terminal Servs., Inc., 826 F. Supp. 326, 331 (C.D. Cal. 1993) (holding that WARN was enacted to "soften the blow" on employees -- not to penalize the employer). Given the remedial goals of WARN, it cannot be considered a penalty or a forfeiture. Therefore, Pennsylvania's statute of limitations governing civil penalties and forfeitures does not govern a WARN claim.
Under 42 Pa. Cons. Stat. Ann. § 5524(2), a two year limitation period applies to any action for personal injuries caused by the negligence of another. Further, § 5524(3) covers tortious injuries and damage to personal property. Although there is no perfect analogy with Pennsylvania law, a WARN claim is not analogous to a tort claim for personal injury or an injury to property. See United Paperworkers Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51, 57 (2d Cir. 1993) (noting that traditional tort concepts have no application to a WARN claim).
The defendants argue that a WARN claim closely resembles a claim for wrongful discharge, for which at least one court has applied Pennsylvania's two year statute of limitations.
A WARN claim, however, is different from a wrongful discharge action. There is no contention that the employer could not discharge the employees; instead, WARN obligates the employer to give sixty days notice prior to any termination. In this regard, courts which have analogized a wrongful discharge claim to a WARN action have done so through a contract analysis, not a tort analysis. See United Paperworkers Local 340, 999 F.2d at 57; Luczkovich v. Melville Corp., 911 F. Supp. 208, 209-10 (E.D. Va. 1996). In Luczkovich, the court noted that WARN claims involve economic injury, not personal injury. Id. at 209-10. Although wrongful discharge was not a perfect analogy, the court noted that the same Virginia statute also served as a "catch-all" such that its application to a WARN claim would be appropriate. Id.
Given the approach of these courts, I am persuaded that the limitations periods covering tortious personal and property injury, including wrongful discharge, are not closely analogous to a WARN claim. WARN does not involve personal injuries. WARN does not relate to wrongful retention or injury to personal property. Nor does it resemble tortious interference with contractual relations. Instead, WARN relates to the economic injury that a worker suffers as a result of the abrupt severance of his or her contractual relationship with the employer. Viewed in this context, a WARN claim is more analogous to a claim for a breach of an implied contract or a claim under the Wage Payment and Collection Law, as both relate to an employer's obligation to his or her employees.
From a contract perspective, WARN essentially establishes an obligation on the part of an employer to make a "severance" payment if it fails to warn its employees of an impending plant closure. Failure to provide the required notice resembles breach of a contractual obligation with a liquidated damage remedy. In fact, the vast majority of courts have determined that a WARN claim more closely resembles a contract action than a tort action. See International Union, United Plant Guard Workers of Am. v. Johnson Controls World Servs., Inc., 100 F.3d 903, 906 (11th Cir. 1996) (finding that a claim for specific performance of a contract most closely resembles a WARN claim); Staudt v. Glastron, Inc., 92 F.3d 312, 316 (5th Cir. 1996) (stating that most courts adopt a contract statute of limitations for WARN claims as it relates to a debt for wages that are owed); Aaron v. Brown Group, Inc., 80 F.3d 1220, 1225 (8th Cir.) ("[WARN] most closely analogous to an action to recover for a breach of an implied contract (or breach of an obligation) to notify employees before terminating them."), cert. denied, 136 L. Ed. 2d 252, 117 S. Ct. 361 (10th Cir. 1995); Frymire v. Ampex Corp., 61 F.3d 757, 764 (10th Cir. 1995) ("WARN remedy of back pay mirrors the type of remedy afforded those who fall victim to an implied contract breach -- giving individuals what they would have been entitled to had there been no breach."), cert. denied, 134 L. Ed. 2d 685, 116 S. Ct. 1588 (1996); United Paperworkers Local 340, 999 F.2d at 57 ("[A contract claim] shares with a WARN claim an interest in protecting workers from unexpected joblessness or loss of hours."); Siniscalchi v. Shop-Rite Supermarkets, Inc., 903 F. Supp. 182, 189-90 (D. Mass. 1995) (noting that negligence of the employer is not relevant and that Congress intended to compensate workers for their reliance interests); Bell v. Philips Elec. of the Netherlands, 897 F. Supp. 938, 940 (N.D.W. Va. 1995) (applying contract limitations period which promoted the purposes of WARN and allowed workers adequate time to discover their rights); Wallace v. Detroit Coke Corp., 818 F. Supp. 192, 197 (E.D. Mich. 1993) (applying statute of limitations for implied contracts to a WARN claim).
Even in states which provide at-will employment, courts have adopted the implied contract analogy to WARN claims. See Moran, 80 F.3d 1261, 1266; Frymire, 61 F.3d at 764; United Paperworkers Local 340, 999 F.2d at 57.
Pennsylvania's Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. § 260.1 et seq., creates a right to bring an action against an employer for back wages and other earned compensation. Such an action, while resembling a contract action as it relates to the employer's contractual duty to provide earned compensation to his or her employees, is specifically governed by a three year limitations period. This Pennsylvania statutory cause of action also resembles a WARN action as its intent is remedial -- to provide an injured employee with a means to recover not only unpaid wages but liquidated damages as well. 42 Pa. Cons. Stat. Ann. § 260.10. In this regard, it serves to ensure that employers will honor their obligation to pay terminated employees the wages they had earned before being laid off. Therefore, one could reasonably argue that WARN and Pennsylvania's Wage Payment and Collection Law are closely analogous.
Given the similarities between a WARN action, an implied contract action, and a Wage Payment and Collection Law action, a determination of which cause of action is more closely analogous to a WARN claim is exceedingly difficult. Reasonable arguments can be made to support both positions. Under these facts, however, there is no need to choose one or the other. Because this action is timely under either the Wage Payment and Collection Law or a claim for a breach of an implied contract, defendants' motion to dismiss this action as untimely will be denied.
B. Polacheck's Claim
The defendants argue that Polacheck's claim must fail as he was terminated prior to the May 12 sale, and was thus no longer an "affected employee" under the statute. In his supplemental affidavit, Joseph S. Hodin alleges that Polacheck was fired for cause on May 1, 1993. (Hodin Supp. Affidavit (Dkt. Entry 28) Exhibit A, P 6.) Hodin also claims that all negotiations to sell the stores were on hold when Hodin made his decision to terminate Polacheck. (Id. P 11.) On the other hand, Polacheck, a Giant employee for over twenty-five years, claims that he had been temporarily laid off, that he did not voluntarily quit, and that he received unemployment compensation benefits without any objection from Giant. (Polacheck Affidavit (Dkt. Entry 26) PP 21-24.) An employee on temporary lay-off with a reasonable expectation of being recalled is a covered employee under WARN. 20 C.F.R. § 639.3(a)(1); Kildea v. Electro Wire Prods., Inc., 792 F. Supp. 1046, 1049-50 (E.D. Mich. 1992); Jones v. Kayser-Roth Hosiery, Inc., 748 F. Supp. 1292, 1298, amended on other grounds, 753 F. Supp. 218 (E.D. Tenn. 1990). In this case, there is a genuine issue of fact as to whether Polacheck, a Giant employee for over twenty-five years, was laid off and had a reasonable expectation that he would be recalled to work. Both sides have submitted affidavits which contradict each other on all relevant points. Given the lack of conclusive evidence, summary judgment would not be appropriate.
C. Single Site of Employment
As noted earlier, I have already encountered identical arguments as to whether Giant's stores constituted a "single site of employment" under WARN. See United Food & Commercial Workers Union v. Giant Markets, Inc., 878 F. Supp. 700 (M.D. Pa. 1995). In that case, I was presented with the affidavit of Joseph S. Hodin, which was more detailed than his affidavit presented in this case.
Further, Thomas Polacheck, although not a plaintiff in the original case, submitted an affidavit which mirrors the one presented in this case. In response to this material, I held:
There are, however, genuine disputes concerning the management, structure, workforce, individual store autonomy, and sharing of equipment. . . .