On December 20, 2007, New Jersey Governor Jon Corzine signed the long awaited “Millville Dallas Airmotive Plant Job Loss Notification Act” (the “Millville Dallas Act”) into law, immediately establishing State “baby Warn” notification requirements for New Jersey employers with 100 or more full-time employees effectuating certain plant closings, transfers and mass layoffs.
Although the notice provisions of the Millville Dallas Act underwent revision last month following the Governor’s conditional veto, New Jersey employers should nonetheless take note of the Act insofar as it exacts heavier punitive measures against covered employers than those currently existing under the federal Worker Adjustment and Retraining Notification Act (“WARN”) in the event those employers fail to provide affected employees with 60 days pre-notification before the first termination of employment occurs in connection with the termination or transfer of operations or mass layoff.1
Unlike under the federal WARN, the New Jersey Act exempts from its coverage only those terminations of operations caused by fire, flood, natural disaster, national emergency, an act of war, civil disorder, industrial sabotage, decertification from social security programs, or license revocation. Notification provisions will thus be triggered for any covered employer planning any of the following events at any single place of employment it has operated for a period longer than three years (excluding temporary construction sites) (the “Establishments”) for any reason other than one of the few excluded reasons:
- a transfer or termination of operations at an Establishment which results, during any continuous 30- day period, in the discharge of 50 or more full-time employees (defined as individuals working an average of more than 20 hours per week and who have been employed at least 6 of the 12 months preceding the date on which notice is required under the Act); or
- a “mass layoff” (defined as a reduction-in-force at any single place of employment during any 30-day period which result in the discharge of (i) 500 or more full-time employees, or (ii) 50 or more of the full-time employees if they constitute one-third or more of the total employees working at the Establishment); or
- terminations of employment for two or more groups at an Establishment occurring within a 90-day period which, in the aggregate, exceed the number required to trigger notice for a single group, unless the employer demonstrates that the cause of the terminations of each group are separate and distinct.
Under the Act, covered employers will also be required to provide written notification of the transfer or termination of operations or mass layoff to the Commissioner of New Jersey Department of Labor and Workforce Development, the chief elected official of the local municipality, and any union representatives (which notice must be completed upon a Department of Labor form once available from the Department). The content of the written notification must include
- A statement of the number of employees whose employment will be terminated as a result of the mass layoff or transfer or termination of operations
- The date upon which the mass layoff or transfer or termination of operations, and each employee termination, will occur;
- A statement as to the reasons for the mass layoff or transfer or termination of operations;
- A statement of any employment opportunities available at other facilities operated by the employer, including information regarding the pay, benefits, location and other terms and conditions of such available, alternate employment;
- A statement of any employee rights with respect to wages, severance pay, benefits, pension or other terms of employment as they relate to the termination, including any rights based on an existing collective bargaining agreement or other existing employer policy;
- A disclosure of the amount of severance pay payable pursuant to the Act; and
- A statement of employees’ right to receive referral and counseling information from the New Jersey Department of Labor as to public programs which may make it possible to delay or prevent the mass layoff or transfer or termination of operations, public programs and benefits available to assist employees, and employee rights under applicable law.
Covered employers are additionally mandated to permit a Department of Labor Response Team on-site, worktime access to the employees of the facility so that they may provide the affected employees with referral and counseling information, including but not limited to information on those public programs that may delay or prevent the mass layoff or termination or transfer of operations.
Should a covered employer fail to provide the required written notices under the Act, they will be obligated to pay all affected employees severance equal to one week of pay for each full year of employment at the higher of (i) the average regular rate of compensation received during the employee’s last three years of employment or (ii) the final regular rate of compensation paid to the employer. This severance requirement is more onerous than that provided under the federal WARN, and is in addition to any severance the employer would already pay pursuant to a collective bargaining agreement or for any other reason (although back-pay provided to employees due to a violation of the federal WARN shall be credited toward meeting the New Jersey severance pay requirement).
Prudent employers planning a plant closure, transfer or mass layoff in New Jersey should take note of this new law, and are strongly urged to consult with counsel before implementing any such actions in order to avoid triggering the potentially onerous penalty provisions of the Act.