The federal Worker Adjustment Notification and Retraining Act (the “WARN Act”) generally requires employers to give affected employees and local government officials advance notice of a plant closing or a mass layoff at a single site of employment. New York recently enacted a new law that is patterned on the WARN Act, but is broader in several significant respects. This enactment, officially entitled the New York State Worker Adjustment Notification and Retraining Act (the “NY WARN Act”), Labor Law §§ 860–860-i, will take effect February 1, 2009.
The principal differences between the federal WARN Act and the NY WARN Act are that (1) the WARN Act applies to employers with 100 or more full-time employees, whereas the NY WARN Act applies to those with 50 or more; (2) under the WARN Act, a “mass layoff” occurs if there is a reduction in force that results in an employment loss at a single site of employment of at least 33 percent of the full-time workforce, totaling at least 50 employees, or of at least 500 employees, whereas under the NY WARN Act, the minimums are instead 25 and 250, respectively; (3) a “plant closing,” under the WARN Act, occurs when a facility is shut down resulting in the termination of at least 50 employees, whereas, under the NY WARN Act, the minimum number is 25 employees; (4) unlike the WARN Act, the NY WARN Act also requires a covered employer to provide notice of a “relocation,” which is defined as the removal of all or substantially all the industrial or commercial operations of the employer to a different location at least 50 miles away; and (5) the WARN Act requires 60 days’ advance notice of a plant closing or mass layoff, whereas the NY WARN Act requires 90 days’ advance notice (although the maximum liability for back pay and benefits under the NY WARN Act is 60 days, which is the same as the WARN Act’s maximum).
Because the federal WARN Act does not preempt more protective state law provisions, employers who are considering plant closings, layoffs or relocations at employment sites in New York must be sure that they are in compliance with the more expansive NY WARN Act provisions, particularly the 90-day advance notice requirement. In fact, the passage of this legislation serves as an important reminder that employers considering plant closings or layoffs in any state should always check to see whether there is a more restrictive state law counterpart to the federal WARN Act.