The New York State Worker Adjustment and Retraining Notification Act (the “NY WARN Act”) became effective February 1, 2009. The NY WARN Act differs from the federal WARN Act in several material respects, including, but not limited to:
- The NY WARN Act applies to employers of 50 or more employees (excluding part-time employees) or 50 or more employees that work in the aggregate at least 2,000 hours per week; the federal WARN Act applies to employers of 100 or more individuals (excluding part-time employees) or 100 or more employees that work in the aggregate at least 4,000 hours per week (exclusive of overtime hours).
- In addition to plant closings and mass layoffs, the NY WARN Act also clearly applies to relocations, defined as “the removal of all or substantially all of the industrial or commercial operations of an employer to a different location fifty miles or more away.”
- Under the NY WARN Act, employers must provide 90 days’ prior written notice of plant closings, mass layoffs or relocations (although damages are limited to 60 days); the federal WARN Act requires that employers provide 60 days’ prior written notice of plant closings or mass layoffs.
- The number of affected employees necessary to implicate the NY WARN Act is half the number necessary to implicate the federal WARN Act. A plant closing under the federal WARN Act requires a shutdown resulting in the employment loss at a single site of employment for 50 or more employees; a plant closing under the NY WARN Act requires a shutdown resulting in the employment loss at a single site of employment for 25 or more employees. Similarly, under the federal WARN Act, a mass layoff means a reduction in force which results in an employment loss at a single site of employment for (i) (A) at least 33 percent of the employees and (B) at least 50 employees or (ii) at least 500 employees. Under the NY WARN Act, a mass layoff means a reduction in force which results in an employment loss at a single site of employment for (i) (A) at least 33 percent of the employees and (B) at least 25 employees or (ii) at least 250 employees. Under both Acts, part-time employees are excluded from these calculations.
As with the federal WARN Act, there are exceptions under the NY WARN Act where an employer is not required to comply with the notice requirements. Under the NY WARN Act, employers are excused from the full notice requirements when: (a) the need for notice was not reasonably foreseeable at the time the notice would have been required; (b) the employer was actively seeking capital or business, the capital or business sought, if obtained, would have enabled the employer to avoid or postpone the terminations or relocation, and the employer reasonably and in good faith believed that had it provided the required notice, it would have been precluded from obtaining the needed capital or business; (c) the closing or layoff was due to a natural disaster; (d) the operation being closed was a temporary facility or the mass layoff or plant closing occurred because the particular project or undertaking was completed and the affected employees understood when they were hired that their employment would end once the project or undertaking ended; or (e) the plant closing or mass layoff constitutes a strike or a lockout not intended to evade the notice requirements.
Employers considering a plant closing, mass layoff or relocation must carefully analyze the WARN implications under federal and state law and the applicability of exceptions to the particular facts. Actions that would not have required WARN notice under federal law may implicate the more expansive NY WARN Act. Further, as with the federal WARN Act, the exceptions do not provide a general excuse from compliance solely because an employer is experiencing financial difficulties — rather, the specific requirements of the particular exception must be satisfied.