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Labor & Employment – Mass Layoffs – WARN Act – Attorney’s Statements – Single Employer Enterprise – UBC Exception

Plaintiffs allege that defendants Fluor Daniel Maintenance Services, Inc. and SCANA Corp. constituted a single employer enterprise in the construction of the V.C. Summer Nuclear Station; however, during a hearing, plaintiffs’ counsel made remarks that Fluor contends were judicial admissions that Fluor did not order the closing of VC Summer.

A plain reading of counsel’s statements shows that they are not deliberate, clear and unambiguous admissions, as would be required to find them to be judicial admissions.

The court denies Fluor’s motion for judgment on the pleadings.

Counsel’s statements factually referencing SCANA do not evince an intent to deliberately waive the right to present evidence regarding Fluor’s alleged role in the VC Summer shutdown. Moreover, the factual references to SCANA in plaintiffs’ counsel’s statements also do not appear to contradict the allegations of the complaint wherein plaintiffs allege that SCANA was the single employer together with Fluor and/or Westinghouse Electric Company LLC of all individuals working at VC Summer. The court finds that the statements of plaintiffs’ counsel do not constitute judicial admissions entitling Fluor to judgment on the pleadings.

Fluor is also not entitled to judgment on the pleadings on the basis of the “unforeseeable business circumstances” (the UBC) exception to liability under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101–2109 (the WARN Act). The UBC exception is an affirmative defense that is applicable when a plant closes or mass layoff occurs “before the conclusion of the 60-day [notice] period if the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required.” 29 U.S.C. § 2102(b)(2)(A).

To establish the UBC exception, an “employer must demonstrate (1) that the business circumstances that caused the layoff were not reasonably foreseeable and (2) that those circumstances were the cause of the layoff.” However, even if an employer establishes that unforeseeable events prevented it from giving notice 60 days in advance, the WARN Act still requires that employers give as much notice as is practicable under the circumstances, including, where appropriate, notice after the fact.

Fluor has not met its burden of demonstrating the applicability of the UBC exception. First, the court does not perceive any support in the pleadings or their incorporated documents for finding that Fluor provided statutorily compliant notice when it eventually did inform its employees that they were being terminated. Second, the pleadings and their incorporated documents do not clearly identify the unforeseeable business circumstances that caused the shutdown of the VC Summer project.

Based on the foregoing, Fluor is not entitled to judgment on the pleadings based on the UBC exception.

Motion denied.

Pennington v. Fluor Corp. (Lawyers Weekly No. 002-154-18, 15 pp.) (J. Michelle Childs, J.) 0:17-cv-02094. Lucy Clark Sanders, Jack Raisner, Nancy Bloodgood and Rene Roupinian for plaintiffs; John Hagood Tighe, David Kresser, Kathleen McLeod Caminiti, Charles Speth II, D. Michael Henthorne, James Fowles III and Christopher Ray Thomas for defendants. D.S.C.


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