(a) In the case of a mass layoff, plant closing or relocation, an employer is not required to comply with the notice requirements of this chapter under any of the following circumstances:

(1) a. At the time the notice would have been required, the employer was actively seeking capital or business;

b. The capital or business sought, if obtained, would have enabled the employer to avoid or postpone the relocation or termination; and

c. The employer reasonably and in good faith believed that giving the notice required by this chapter would have precluded the employer from obtaining the needed capital or business.

(2) The mass layoff or plant closing is caused by business circumstances that were not reasonably foreseeable at the time the notice would have been required. A business circumstance that is not reasonably foreseeable may be established by the occurrence of some sudden, dramatic and unexpected action or condition outside of the employer’s control. Examples include a principal client’s sudden and unexpected termination of a major contract with the employer, a strike at a major supplier of the employer, an unanticipated and dramatic major economic downturn or a government-ordered closing of an employment site that occurs without prior notice. The employer shall exercise commercially reasonable business judgment in determining whether a business circumstance is reasonably foreseeable.

(3) The plant closing is of a temporary facility or the mass layoff or plant closing is the result of the completion of a particular project or undertaking, and the affected employees were hired with the understanding that their employment was limited to the duration of the facility or project or undertaking or a specific portion of such project or undertaking. This includes industries such as construction and their related projects; however, this does not exempt a construction company if they suffer a mass layoff or plant closing not related to a specific project or undertaking.

(4) The mass layoff or plant closing is due to any form of natural disaster, such as a flood, earthquake, or drought.

(5) The mass layoff or plant closing constitutes a strike or constitutes a lockout not intended to evade the requirements of this chapter. Nothing in this chapter shall require an employer to serve written notice when permanently replacing a person who is deemed to be an economic striker under the National Labor Relations Act (29 U.S.C. § 151 et seq.). Nothing in this chapter shall be deemed to validate or invalidate any judicial or administrative ruling relating to the hiring of permanent replacements for economic strikers under the National Labor Relations Act.

(b) An employer unable to provide the notice otherwise required by this chapter in a timely fashion as a result of circumstances described in subsection (a) of this section shall provide as much notice as is practicable and at that time shall provide a brief statement of the basis for reducing the notification period. The failure to provide such notice in as timely a manner as possible shall constitute a violation of this chapter.

81 Del. Laws, c. 312, § 1;