Megan Walker BlogAre you thinking of shifting your retail business model and, in turn, laying off mass amounts of employees? Before you do, consider that you might be required to give notice to employees beforehand. By Megan Walker


As retailers evaluate the risks and benefits of moving away from the shop on the corner and toward the shop dot com, they must consider how to handle employee layoffs. The key law when making those types of calls is the Worker Adjustment and Retraining Notification (“WARN”) Act.

The aptly-named WARN Act requires employers to give notice to employees and others in advance of “plant closings” and “mass layoffs.” Because such events are rare, WARN can be easily forgotten. 

Plant Closings and Mass Layoffs

Though “plant” conjures images of smokestacks, a “plant closing” refers to any permanent or temporary shutdown of a single site of employment, or the elimination of a department within a single site of employment, in any industry that results in the loss of employment for 50 or more employees within a 30-day period.

A “mass layoff” for purposes of WARN is any other reduction-in-force that results in an employment loss for at least 33 percent of the active employees at a single site, and at least 50 employees in a 30-day period. A mass layoff can also include the loss of employment for 500 or more employees at a single site in a 30-day period.

Part-time employees are not counted in determining whether the event is a plant closing or mass layoff.  Therefore, many retail employers will avoid WARN obligations if they are primarily laying off part-time or seasonal workers. A part-time employee is one who worked less than 20 hours per week on average during the previous 90 days - or over the course of employment if less than 90 days - or an employee who worked less than six of the twelve months preceding the required notice date. 

A “single site” may encompass multiple locations situated close together, but it typically refers to a single business location, particularly if each location employs distinct workers. For example, three grocery stores under the same ownership were not a single site under WARN because each store prepared its own weekly sales report; had its own profit and loss statements; determined its own product needs; placed its own resupply orders; had its own management staff and payroll; and hired, fired and disciplined its own workers. Nevertheless, if you have stores located close enough together that they share management and employees, it is worth taking a closer look to see if they could be considered a “single site” for purposes of WARN.

Who Must Receive Notice?

If the employees losing their employment are represented by a union, notice must go to the chief elected officer of the exclusive representative(s) or bargaining agent(s) of the affected employees, as well as the officer of the employees’ local union—which may be the same person.

Employees not represented by a union must be notified directly. Although part-time employees are not considered in the count giving rise to the layoff, they still must be notified if they will experience employment loss.

What Must the Notice Contain?

To pass WARN muster, the notice must include:

* Whether the action is expected to be permanent or temporary;

* If the entire “plant” is to be closed;

* The expected date of the plant closing or mass layoff; and

* The name and telephone number of a company official to contact for further information.

If the notice is provided to non-union employees, it must also contain information about whether “bumping rights” exist under company policy or practice.

A notice to a union representative must contain the four items listed above, along with:

* The name and address of the affected employment site;

* The anticipated schedule for making separations; and

* The titles of positions and names of workers who will be affected.

The required notices to the state and the appropriate local elected official must contain all the information described above, along with the name of each union representing affected employees, and the name and address of each union’s chief elected officer.

Additional Requirements May Apply

This article presents a brief overview of the key scenarios that may trigger your requirement to provide notice under federal law. However, be aware that the statute includes additional provisions, and many states also have their own requirements, sometimes called “mini-WARN Acts.” Additional forms of notice may be required under certain circumstances.

Before conducting layoffs, partner with your labor and employment attorney to make sure you understand the varied requirements that might come into play to ensure you can proceed with the appropriate WARN-ing.

Megan Walker is an attorney for Fisher Phillips, where she provides counsel to and defends employers in employment law matters. She can be reached at


ThinkstockPhotos 654079002Here's how brand marketers can turn omnichannel marketing into a strategy for business growth. By Brendan Morrissey

If you were alive during the summer of 1980, then you remember Sony’s release of the Walkman and its immediate rise to “must have fad” status. Even though many individuals still preferred listening to their vinyl albums, Walkman sales immediately soared. Because as with most passing fads, we tend to follow the crowd and spend our money without considering the actual value it brings to us, right?

Brand marketers in 2017 are experiencing a similar fad obsession: omnichannel marketing. Most brands understand the importance of delivering a seamless experience across digital and mobile platforms, and are quick to pour money and time into aligning customer experiences online and across devices. But in doing so, they are forgetting about the most important channel: the local brick-and-mortar store.

The local retail experience is crucial to the buyer’s journey, and if brands aren’t aligning their marketing efforts with their local partners, then omnichannel marketing does become a passing fad, not a strategy for business growth.  So how can brand marketers turn a fad into a financial opportunity?

Adding the physical channel back into omnichannel

The first step to successful “omnichannel marketing” is broadening your definition of omnichannel to include local storefronts. Even though we live in a society that is driven by online and device engagement, the clear majority of the nearly $5 trillion in U.S. retail sales occur in stores, with retail e-commerce accounting for just 7.1 percent of all retail sales.

While the point of sale may be occurring at physical stores, the National Retail Federation estimates that up to two-thirds of in-store visits are driven by something a consumer saw online first. For example, a customer might research mattress options online, but then drive to an actual storefront to test and purchase the product. The physical and digital worlds overlap constantly in the buyer’s journey, and the in-store experience needs to align with the customer’s digital experience to ensure customer loyalty. 

Remember to bring your online promotions offline

Promotions can be a great way to entice on-the-fence shoppers to make a purchase. According to the 2016 Nielsen Social Media Report, 35 percent of heavy social media users cite special discounts as important to brand loyalty, such as access to exclusive offers and coupons. However, online promotions need to align with the in-store offers.

Consumers assume that the store’s online messaging aligns with their local retailer offerings, so misleading information can hurt the brand’s reputation and impact the chances of future sales with that customer. Brands need to communicate regularly with their local retail partners to ensure that they have the right messaging, content assets and shared promotional opportunities.

Delivering on the complete channel experience

As a brand marketer, you need to understand how your digital marketing efforts impact in-store sales and implement a click-to-brick marketing strategy. Brands can learn a lot from the e-commerce master, Amazon. Although Amazon’s initial success was in the digital space, it’s now added several brick-and-mortar Amazon bookstore locations and plans to build more locations in 2017. Amazon is aligning itself with the buyer’s journey, recognizing that the journey still involves in-store purchases.

Brands should focus on their customers’ online and offline purchasing behavior to create a true omnichannel experience. And for brand marketers, this means leveraging the insight from their local retail partners. Marketers need to identify the tools, technology and engagements that can turn their disconnected marketing strategy into a seamless customer experience, ultimately increasing the bottom line for both the brand and the partner.

Brendan Morrissey is the CEO and co-founder at Netsertive.

Lawson Richard headshotThe Internet of Things and artificial intelligence are developing at a rapid pace, opening up new pathways for retailers to engage with consumers. However, retailers must be mindful of how consumer privacy laws are enforced by the Federal Trade Commission and state attorneys general. By Richard Lawson, partner at Manatt, Phelps & Phillips LLP


It has been estimated that 80 percent of the world’s data has been created in the past two years, and by all reasonable measures, we are only just getting started. Already, 2.5 billion gigabytes of data are generated per day. To give some context, a review of one gigabyte of emails is estimated to take about 500 man hours. Accordingly, a review of 2.5 billion gigabytes of data would take countless lifetimes.

Further, this number is set to explode in the next few years as the Internet of Things (“IoT”) takes off, with estimates running from 20 billion connected devices on the low end to 50 billion on the high end, each generating yet more data. This deluge will be simply unintelligible without the addition of artificial intelligence (“AI”). The combination of AI and IoT will affect the consumer experience in degrees that make the past few decades of technological innovation pale by comparison.

Already in health care, AI has increased life expectancies beyond the ability of the best doctors acting just a few years ago. In transportation, AI is the heart of autonomous vehicles which promise to save lives and decrease commute times. In the home, AI and IoT provide consumers with seamless conveniences and efficiencies, from sensors detecting when you need more milk to reducing costs for heating and cooling.

New Technology, Old Regulations

For all the new opportunities present in these three areas of the consumer experience – and for all the opportunity this creates for retailers to engage with consumers – it is important to remember these ‘new vintages’ of data will be poured into the relatively old and established ‘bottle’ of consumer privacy law, enforced with equal vigilance by the Federal Trade Commission (“FTC”) and state attorneys general (“AGs”).

The FTC and AGs have been engaged in privacy matters in the digital space for roughly 20 years. Yet the structure of these enforcement efforts dates back even further, to the early 1970s, and the Fair Information Practice Principles (“FIPPS”). The FIPPS address core issues that will have a profound impact on the development of IoT and AI. For example, notice and choice to consumers as to what is collected, minimizing the amount of data collected to only what is needed to provide the service at issue, and data security all have their formal origins in the FIPPS.

Providing Notice and Choice

Notice and choice to what data is being collected and consent to the collection has long been a core issue to the enforcement of consumer privacy laws. For example, when consumers visit a retailer’s website, they often see a link to the privacy policy of the site, detailing what and how the data collected from their visit may be used. In the IoT context, this raises significant issues.  How, for example, does one include a privacy policy on a bottle of aspirin or a light bulb? When these items are connected, consumers can be offered tremendous benefits. However, detailed pictures of their health and lifestyle can also be assembled which a consumer might not want shared. 

Minimizing Data Collected

Data minimization – the practice of not obtaining any more data than necessary for the service provided and not retaining, which is collected for any longer than necessary – also has profound implications for IoT and AI. If collected data can be monetized, this necessarily reduces costs allowing for greater implementation of IoT devices. For example, instead of a GPS connected device on a wrist, imagine IoT devices imbedded in shoes, which in turn connect to devices on a sidewalk creating a highly detailed and accurate portrait of various speeds along a run. 

Under traditional FIPPS minimization practices, companies should avoid keeping this data any longer than necessary and to not collect any more data than needed. However, massive amounts of data regarding pedestrian traffic flows, when combined with AI, could allow for developments in urban planning, well beyond the initial purpose of the IoT device tracking a runner’s speed.

Data Security

Security has seen the most activity from government enforcement agencies. With the volume of data that IoT will be collecting, the sensitivities will be even more acute. Further, IoT data combined with AI processing power has the potential to turn massive amounts of innocuous data into something that can create a highly detailed portrait of an individual. And of course additional issues of malevolent actors arise with IoT, from DDoS attacks to the fear of the hacked autonomous car.

Expect Continued Government Enforcement

The FTC and AGs have a long track record of enforcement efforts in these areas of notice and choice, data minimization, and security. More recently, FTC Acting Chairwoman Maureen Ohlhausen has indicated that enforcement and regulation of these areas – in particular data minimization and the notice and choice regime – should be tempered by a focus on concrete harm to consumers.

While this argues that innovations from industry in the IoT and AI spheres will be measured by a cost / benefit analysis to consumers, there are other government actors beyond the FTC. The state AGs are very experienced in technology issues – the AG offices for the four biggest states (California, Texas, Florida and New York) each have their own dedicated privacy units. Further, AGs, while often guided by decisions of the FTC, are independent sovereigns, and fully capable and willing to act independently of the federal government. 

We are set to witness yet another revolution in how technology will affect our health, homes and transportation. Retailers looking to take advantage of IoT and AI must be mindful that these fantastic opportunities are taking place within the established context of consumer privacy law. It will be essential to take into consideration the notice and choice regime, data minimization and data security. Incorporating these concerns will earn consumer trust, while failure to do so could secure unwelcome government investigations.

Richard Lawson is a partner in the Consumer Protection and Advertising, Marketing & Media practices of law firm Manatt, Phelps & Phillips LLP. Mr. Lawson can be reached at

Jimmy Picture2Jimmy The Bull licensing will include giftables, calendars, stationery, hydration, apparel and much more.


The Brand Liaison has tapped its most adorable client ever: Jimmy The Bull – the Internet sensation bull terrier created by artist Raphael Mantesso.

Jimmy The Bull, who is named after the footwear designer Jimmy Choo, licensing includes humorous images that combine photography and free-hand illustrations. The pet’s photographs are created by placing the bull terrier within hand drawn illustrations, such as sunglasses, the newspaper, and even a cape and a city skyline. 

Since its first release in 2015, the whimsical drawings of Jimmy The Bull have captured the world’s attention. The images were broadcast across global media and Jimmy The Bull’s Instagram feed became an immediate international sensation followed by his first book entitled “A Dog Named Jimmy” featuring a collection of the tongue-in-cheek imagery.

Expanding upon the success of Jimmy The Bull’s book of art and imagery, Jimmy the Bull licensing will include giftables, calendars, stationery, hydration, apparel and much more.

BLEThe new features include a gaming activation area and an expanded brands and lifestyle theater program.

Online registration for Brand Licensing Europe (BLE), the largest licensing event in Europe, kicked off June 19 at The 19th annual event of BLE will be held Oct. 10-12 in Olympia London, United Kingdom.

Organized by UBM and sponsored by the International Licensing Industry Merchandisers’ Association (LIMA), at this year’s show, BLE will host several new visitor activations and exhibitors, including the new Gaming Activation Area, which will serve as an interactive space for demonstrations, competitions and highlight the potential of gaming at retail, from concept to store.

BLE will also feature an expanded Brands & Lifestyle Theatre Program to include more sessions during daily, as well as interactive performances and demonstrations each morning. There will also be a newly revamped Product Showcase.

“We are so excited to be rolling out these new initiatives for visitors to BLE in October,” BLE Brand Director Anna Knight said in a release. “Gaming is a huge untapped market – one we know our visitors will really benefit from discovering. And this year’s educational program is our most comprehensive yet – unmissable for both buyers and manufacturers whether new to, or already familiar with, the power of licensing in business.”

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