Childress v. Darby Lumber, Inc., 357 F.3d 1000 (9th Cir. 2004)

Darby Lumber, Inc. (DLI) operated as a lumber mill and manufactured, marketed, and sold finished lumber. DLI owned 100 percent of the stock of Bob Russell Construction (BRC). During the 12 months prior to BRC’s closure, DLI employed 88 employees, each with more than 1,000 hours of employment with the company, and BRC employed 18 employees with more than 1,000 hours of employment. On September 24, 1998, DLI’s general manager placed a written statement in the paychecks of all DLI employees, advising them that due to the financial difficulties of the company, there would be a “major layoff.” The next day, DLI shut down the mill and laid off all of its employees; the employees of BRC were laid off over the next several months. When the former DLI employees filed this lawsuit, alleging a violation of the WARN Act (since fewer than 60 days’ notice of the layoff had been given to them), DLI asserted that the Act did not apply because the company had fewer than 100 full-time employees and in any case one of the statute’s affirmative defenses spared it from liability. The district court granted the employees 60 days of wages in the amount of $60,345.45 and $123,033.44 in attorney’s fees; the Ninth Circuit affirmed, holding that DLI and BRC were a single employer for purposes of the WARN Act since they had common ownership, management, centralized control of labor relations and interrelation of operations. The Court further held that none of the affirmative defenses under the Act (i.e., good faith, business circumstances, faltering company) protected DLI from liability in this case.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.