Pennington v. Fluor Corporation, 511 F.Supp.3d 688

Background

SCANA contracted with Westinghouse (WEC) to build two reactors at V.C. Summer; WEC hired Fluor as a subcontractor to manage on-site craft work and construction in 2016.
WEC filed Chapter 11 in March 2017; SCANA entered an Interim Assessment Agreement and began paying Fluor directly, but did not formally adopt an owner-directed operating model before the shutdown.
On July 31, 2017 SCANA abruptly ordered cessation of construction; ~5,000 workers (craft employees of Fluor/WEC and others) were impacted and received no 60‑day WARN notice from their direct employers.
Plaintiffs sued under the WARN Act alleging SCANA and its contractors (including Fluor) acted as a single employer and failed to provide required notice; motions for summary judgment were filed by both sides.
The court applied the DOL’s five-factor single‑employer test (Pearson factors), analyzed whether Fluor could be liable separately, and considered the unforeseeable business circumstances (UBC) exception and Plaintiffs’ request to judicially notice the criminal Information and Plea Agreement of SCANA’s former CEO.
Holding: the court granted summary judgment to Fluor and SCANA, denied Plaintiffs’ motions and supplementation request, concluded SCANA and Fluor were not a single WARN employer, and found Fluor not liable (UBC and notice-as‑practicable); case dismissed with prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether SCANA and Fluor were a single WARN "employer" under the DOL/Pearson factors	SCANA exercised pervasive operational and financial control at the Project and therefore, with Fluor/WEC, constituted a single employer required to give WARN notice	Relationship was a typical principal–contractor arrangement in a highly regulated industry; no common ownership, shared officers, or centralized HR/pay; SCANA’s oversight was regulatory/contractual, not control	Court: Factors (ownership, officers) do not favor Plaintiffs; de facto control, unity of personnel, dependency of operations favor Defendants — no single employer liability
Whether Fluor is separately liable as a WARN employer for failing to give 60 days’ notice	Fluor was the direct employer of plaintiffs and thus responsible to give WARN notice even if SCANA ordered the shutdown	Fluor did not order the plant closing; even if it had WARN duties, the abrupt owner‑ordered shutdown qualified as an unforeseeable business circumstance (UBC) excusing 60‑day notice	Court: Fluor did not order the closure; alternatively, UBC applied — Fluor’s failure to give 60 days’ notice excused and its post‑closure notices were "as soon as practicable"
Whether the UBC exception should be measured by a low ‘‘reasonable possibility’’ standard or a probability standard	Plaintiffs: lower standard applies; Fluor should have foreseen closure by June 1, 2017	Defendants: controlling circuit authority favors a probability ("more likely than not") standard	Court: adopts the probability standard; on that standard Fluor reasonably could not have foreseen SCANA’s abrupt shutdown
Whether the court should take judicial notice / consider the criminal Information and proposed Plea Agreement of SCANA’s former CEO	Plaintiffs: the Information/Plea show fraudulent concealment by SCANA and would bear on arm’s‑lengthness and foreseeability	Defendants: the documents are neither final (plea unaccepted) nor dispositive of single‑employer or UBC questions; not appropriate for judicial notice to establish disputed facts	Court: declined to take judicial notice; even if accepted, the documents would not change outcome — they tend to support unforeseeability and do not create single‑employer linkage

Key Cases Cited

Pearson v. Component Tech. Corp., 247 F.3d 471 (3d Cir. 2001) (adopts DOL five‑factor test for single‑employer WARN analysis)
Meson v. GATX Tech. Servs. Corp., 507 F.3d 803 (4th Cir. 2007) (purpose of WARN is to provide notice of significant employment loss)
McKinney v. Carlton Manor Nursing & Rehab. Ctr., Inc., 868 F.3d 461 (6th Cir. 2017) (WARN applies only to employers that ordered the plant closing)
Administaff Cos., Inc. v. New York Joint Bd., 337 F.3d 454 (5th Cir. 2003) (contractor‑principal relationships analyzed under DOL factors without threshold ownership showing)
Roquet v. Arthur Andersen LLP, 398 F.3d 585 (7th Cir. 2005) (UBC exception uses reasonable probability standard; need not arise "out of the blue")
In re APA Transp. Corp. Consol. Litig., 541 F.3d 233 (3d Cir. 2008) (dependency of operations factor evaluated by looking beyond single contract/site)
Gross v. Hale‑Halsell Co., 554 F.3d 870 (10th Cir. 2009) (UBC requires unforeseeability and causation; courts avoid hindsight)
United Steelworkers v. U.S. Steel Corp., 683 F.3d 882 (8th Cir. 2012) (UBC exception requires probability rather than mere possibility)