Governor David Patterson recently signed into law the New York State Worker Adjustment and Retraining Notification Act.
The requirements imposed by the new legislation are in addition to those currently imposed by the federal WARN Act. While similar in scope to the federal law, the NY Warn Act lowers the threshold for affected employees and increases the required notice period. Under federal law, employers of 100 or more employees are required to provide 60 days of advance notice to employees affected by a plant closing or mass layoff, as well as notice to state and municipal leaders. By contrast, the NY WARN Act is applicable to employers with 50 or more employees and these employers are required to provide 90 days of advance written notice of mass layoffs, plant closings or relocations. The NY WARN Act defines a mass layoff as an action that results in employment losses during a 30-day period affecting at least 25 full-time employees representing at least 33% of the workforce, or at least 250 full-time employees. A relocation is defined as involving a removal of all or substantially all of the industrial or commercial operations of an employer to another location at least 50 miles away, regardless of whether there are any employment losses. Under the statute, notice must be given to affected workers, the New York State Department of Labor (NYS DOL) and local workforce investment boards. Employers are exempt from the notice requirements if the need for notification was not reasonably foreseeable at the time the notice was required; the employer was actively seeking capital or business when the notice was required and such capital or business, if obtained, would have enabled the employer to avoid or postpone the relocation or layoff; the closing or layoff was due to a natural disaster; the operation being closed was a temporary facility or project closed upon completion of the project; or if the action constitutes a strike or lockout.
Under the NY WARN Act, employers who violate the act must provide back pay and the cost of benefits (including medical expenses incurred by an affected employee that would have been covered under a benefit plan) for the period of the employer’s violation, up to a maximum of 60 calendar days, to each terminated employee who lost his or her employment without receiving the required notification. Employers are also liable to pay civil penalties of not more than $500 for each day of violation.