Were Tampa Tribune Employees Wrongfully Fired?

NPPA attorney Mickey H. Osterreicher believes the Tampa Bay Times lawyers will claim an exception to the WARN act and therefore were not required to give Tampa Tribune workers 60 days prior notice of layoff.
NPPA attorney Mickey H. Osterreicher believes the Tampa Bay Times lawyers will claim an exception to the WARN act and therefore were not required to give Tampa Tribune workers 60 days prior notice of layoff.

ATHENS, GA (May 6, 2016) - By firing more than 100 workers with no prior notice this week as part of its acquisition and closing of the 123-year-old Tampa Tribune, did the owners of the Tampa Bay Times violate federal law? And if so, could the Times be liable for damages totaling hundreds of thousands of dollars, if not into the millions?

"I believe that the Tampa Bay Times will assert an exception to the WARN Act. Section 639.9," NPPA's general counsel Mickey H.  Osterreicher said today.

In the law, the section “When may notice be given less than 60 days in advance?” sets forth three conditions under which the notification period may be reduced to less than 60 days. The law says, "The employer bears the burden of proof that conditions for the exceptions have been met. If one of the exceptions is applicable, the employer must give as much notice as is practicable to the union, non- represented employees, the State dislocated worker unit, and the unit of local government and this may, in some circumstances, be notice after the fact. The employer must, at the time notice actually is given, provide a brief statement of the reason for reducing the notice period, in addition to the other elements set out in §639.7."

Osterreicher told News Photographer magazine today, "The Tampa Bay Times attorneys might rely on either the exception under section 3(b) (1) of WARN, termed 'faltering company,' which applies to plant closings but not to mass layoffs and should be narrowly construed.   One way to qualify for reduced notice under this exception is that the 'employer reasonably and in good faith must have believed that giving the required notice would have precluded the employer from obtaining the needed capital or business.' The employer must be able to objectively demonstrate that it reasonably thought that a potential customer or source of financing would have been unwilling to provide the new business or capital if notice were given, that is, if the employees, customers, or the public were aware that the facility, operating unit, or site might have to close. This condition may be satisfied if the employer can show that the financing or business source would not choose to do business with a troubled company or with a company whose workforce would be looking for other jobs.”

"We do not know if the union or the employees will assert a claim under the Warn act and - if they do - what the company's response might be," Osterreicher said.

A report by the Tampa Bay Guardian said that none of the Tribune’s 265 employees received 60 days notice. In announcing the purchase, Times chief operating officer Paul Tash said that at least 100 former Tribune workers would be laid off. According to reports, the people who were laid off - who were escorted from the building by armed security guards - received this notice, which was mailed to their homes.

A U.S. Department of Labor analyst told the Guardian that giving cashiered employees 60 days severance pay but no advance notice of a layoff still constitutes a WARN Act violation. But the Department of Labor does not have enforcement authority. Wronged workers would need to file a class action lawsuit in federal district court. If successful, each employee laid off could potentially get an additional 60 days pay.

The Tampa Bay Times reported Thursday that the company took on about $13.3 million in new debt just before it purchased its main competitor, the Tampa Tribune, according to a mortgage filed on Wednesday in Pinellas County.

The mortgage does not say what the Times paid for the Tribune, and Times CEO Tash said the amount borrowed is not the purchase price.  Under the purchase agreement between Times Publishing Co. and the seller, Revolution Capital Group of Los Angeles, the purchase price cannot be disclosed unless both sides agree.

The mortgage recorded Wednesday reflects the latest installment of financing the Times has taken out over the past three years with Crystal Financial of Boston, the newspaper reported today. It said that after selling its building and buying the Tribune, the Times now owes Crystal $18 million.

The two newspapers had been in a fierce circulation war for many years, but since 2004 the Tampa Tribune had lost nearly 150,000 daily readers and its circulation was down to 94,000.