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Class certified in WARN Act suit

Virginia Lawyers Weekly//February 21, 2022

Class certified in WARN Act suit

Virginia Lawyers Weekly//February 21, 2022

Where employees alleging a government contractor violated the Worker Adjustment and Retraining Notification, or WARN, Act, claimed a Falls Church office was the “single site of employment,” and there was evidence supporting this position, the motion for class certification was granted.


Plaintiffs, on behalf of themselves and all other similarly situated individuals, request that the court certify their claims against General Dynamics Information Technology, or GDIT for violating the Worker Adjustment and Retraining Notification, or WARN, Act. GDIT opposes class certification by arguing that the predominance requirement of Rule 23(b)(3) has not been established.

Rule 23(a) factors

Under Rule 23(a), class certification is appropriate if “(l) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” The proposed class meets each of these elements. Defendants do not appear to suggest otherwise.

Rule 23(b)(3) factors

In a motion for certification under Rule (23)(b)(3), the plaintiff faces the additional burden of demonstrating that “questions of law or fact common to class members predominate over any questions affecting only individual members; and that a class action is superior to other available methods of fairly and efficiently adjudicating the controversy.” In the Fourth Circuit, it is also necessary to demonstrate compliance with a third “implicit” requirement: the proposed class must be readily ascertainable “in reference to objective criteria.” Each of these three requirements – predominance, superiority and ascertainability – must be met before certification can be granted.

GDIT does not dispute the superiority or ascertainability facets of the Rule 23(b) analysis and argues against class certification only on the lack of predominance. And, an independent assessment by the court confirms that both of those facets are satisfied.

The parties’ predominance dispute turns on whether the proposed class’s “single site of employment” for WARN Act purposes was the Falls Church office where a program management office, or PMO, was housed and from which GDIT’s mobile workforce was directed. Because the WARN Act does not define “single site of employment,” resolution of this keen question necessitates consideration of the Department of Labor’s “single site of employment” regulations known as Subpart 6.

Both parties agree that whether Subpart 6’s characterization of “single site of employment” applies to plaintiffs and putative class members is governed by Meson v. GATZ Tech. Servs. Corp., 507 F.3d 803 (4th Cir. 2007). The court declines to engage in a full merits-based analysis of whether plaintiffs can prove a “single site of employment” at this stage in the litigation, particularly because Meson was not a decision respecting whether class certification was appropriate.

The issue should be litigated on its merits, rather than leveraged as a tool to deny class certification at this stage in the proceedings. Also, at this stage, the record strongly shows that what GDIT called its “mobile workforce” was essential both to office of personnel management, or OPM’s, decision to award the contract to GDIT’s predecessor and to the efficient performance of the OPM contract. And, the record also provides strong support for the plaintiffs’ position that the mobile workforce was directed from the PMO and that the PMO distributed the work-product of the mobile workforce to the OPM. Granting class certification will still allow the parties to dispute whether plaintiffs can meet the “single site of employment” under Subpart 6 and Meson.

Plaintiffs’ motion for class certification and related relief granted.

Piron v. General Dynamics Information Technology, Case No. 3:19-cv-709, Feb. 7, 2022. EDVA at Richmond (Payne). VLW 022-3-065. 40 pp.

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