The WARN Act and regulations also recognize that there may be situations in which an employer cannot give 60 days advance notice. The Act lists three situations in which notice may be given fewer than 60 days before a plant closing or mass layoff will occur. These exceptions are referred to as the faltering company, unforeseeable business circumstances, and natural disaster exceptions. 29 U.S.C. 2102(b). Of these three exceptions, the unforeseeable business circumstances exception is the one that would apply to plant closings or mass layoffs occurring before or in the wake of the potential sequestration on January 2,. The unforeseeable business circumstances exception occurs when "the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required." 29 U.S.C. 2102(b)(2).
The WARN regulations expand on the definition of unforeseeable business circumstances. Section 639.9(b)(1) states that an important indicator of whether a circumstance was reasonably foreseeable is if it was "caused by some sudden, dramatic, and unexpected action or condition outside the employer's control." 20 C.F.R. 639.9(b)(1).