While the WARN Act directs employers with 100 or more employees to give 60 days' notice to employees about any plant closings or mass layoffs, there are exceptions to the rules.

First, employers may not have any advance notice themselves that they will have to close a plant. By and large, such circumstances apply when weather-related catastrophes or fires strike, destroying a plant, but these aren't the only possibilities-in the wake of Sept. 11, we are painfully reminded of other types of tragedies that are beyond our control and that can ruin a business.

"There can be unforeseeable business circumstances that the employer could not reasonably [predict] were going to happen and which were out of the employer's control," notes Kevin J. Mencke, an attorney in the Atlanta office of Ford & Harrison, LLP. "Under such circumstances, you have to give as much notice as is reasonably practical. It is possible in these situations to give less than 60 days' notice and not violate the WARN Act."

There is also what is known as the faltering business exception, but it is really difficult to apply. Mencke explains: "It's for times when a company may feel it is very unwise to make an advanced announcement that it is shutting down a facility.

The company may be worried that, if it gives employees notice that it is shutting down in 60 days, employees may sabotage the business or suddenly file numerous workers' compensation claims. Or the company may be in the middle of being sold and is afraid that announcing the shutdown would cause the company to falter even more. Or it could be trying to seek capital to keep the business going, and if it gives WARN notice, it may not be able to get the investors the company needs."

All these examples are reasons why it may make sense for the company to not give notice but rather go ahead and close the plant and pay employees for an additional 60 days. "Even though this is not specifically provided for under the regulations or the Act," says Mencke, "it can work in the employer's favor.

Just remember, however, that if you don't give 60 days' notice, you are liable for giving employees the 60 days of wages and benefits that they would have received had they continued to work for the normal notice period."

There is one other piece to this practice as well. "If you don't notify the state or local government 60 days in advance, you can be fined up to $500 a day for each day you were short. "Now that comes to $30,000, but it may be worth it to the company to pay the fine, because they may save the money in other ways," Mencke says. In addition, he points out that "typically, we just don't hear of the government imposing that fine very often, as long as the employees are taken care of."

Be careful, warns Mencke. "An employer may think, 'Well, if I lay off 20 today, and 20 in a couple more weeks, and then 20 after that, I am not going to be trigger the WARN Act.' But that's a trap for the unwary."

Best advice? Check with your organization's legal counsel before making a decision on how to proceed.