On August 5, 2008, Governor David Paterson signed the New York State Worker Adjustment And Retraining Notification Act (“NY WARN Act”) into law. The law becomes effective on February 1, 2009. By enacting this legislation, New York joins with several states, including New Jersey, that have adopted state laws modeled after the federal WARN Act. However, the NY WARN Act imposes stricter requirements than the federal law on employers who are shutting down or downsizing New York worksites.
The NY WARN Act has several important differences from the federal law. First, the New York law requires earlier notice than the federal law. Under the NY WARN Act, employers must give employees 90 days’ notice of a mass layoff, plant closing or relocation (60 days under the federal law). Second, the New York law applies to more employers. New York employers with 50 or more full-time employees are covered by this new statute (100 or more employees under federal law). Third, employers must provide notice in more situations under this new law. New York employers must provide notice in the following situations:
- A mass layoff that impacts 25 full-time employees at a single site of employment who represent at least 33% of the workforce or over 250 full-time employees (under federal law it’s 50 full-time employees who constitute at least 33% of the workforce or over 500 full-time employees);
- A plant closing that results in employment loss for 25 or more full-time employees at a single site of employment over a 30-day period (50 full-time employees under federal law); and
- A relocation that results in the removal of all or substantially all of the industrial or commercial operations at a single site of employment and a move to a different location more than 50 miles away.
In addition, under the New York law employers must provide notice to: affected employees, union representatives of the affected employees, the New York Department of Labor, and the local workforce investment board (in contrast the federal law requires employers to give notice to: affected employees, their union representatives, the state dislocated workers’ unit, and the chief elected official in the local government).
Other aspects of the NY WARN Act are similar to the federal law. Notices must contain the same elements and the potential penalties for violations are the same under both laws (i.e., back pay and benefits to each employee for each day of the violation up to a maximum of 60 days and a $500 fine). Finally, the exceptions within the NY WARN Act to providing notice generally track the exceptions under federal law.
Although the NY WARN Act has some similarities to the federal WARN Act, New York employers should be aware of the important differences between the two laws. Day Pitney can provide advice on these and the other federal and state laws, which should be considered, if your business is planning a reduction in force or plant closing