The New York State Department of Labor ("NYS DOL") has made several significant changes to the regulations to the New York State Worker Adjustment and Retraining Notification Act, N.Y. Labor Law §§ 860 et seq. ("NY WARN Act"). The revised regulations replace the original January 2009 version and became effective immediately upon filing on February 12, 2010. As was the case prior to these changes, the NY WARN Act applies to smaller employers than does the federal WARN Act and is triggered by an employment action affecting a smaller number of employees. In the midst of the current economic downturn, when plant closings, mass layoffs, and other reductions in force are all too frequent, all New York employers should carefully review the changes as they not only add to the mandatory notice elements but modify the provisions affecting the determination of whether the NY WARN Act applies in the first instance.

For example, with respect to covered employment actions, the revised regulations now clarify that a covered "reduction in hours of work," previously undefined, must affect "[a]t least twenty-five (25) employees constituting at least 33% of the employees at the site (excluding part-time employees); or at least two hundred fifty (250) employees (excluding part-time employees) regardless of whether they comprise thirty-three percent (33%) of the employees at the site (excluding part-time employees)." (12 NYCCR § 921-1.1(f).) The revisions further clarify that a covered "relocation" must affect 25 or more employees, whereas previously no threshold number of affected employees was included in either the statute or regulations. (12 NYCCR § 921-1.1(f)(1)(v); § 921-1.1(n).)

And, as noted above, the revised regulations also include a number of revisions and additional pieces of information that must be included in the content of the notice to the N.Y. Commissioner of Labor, each affected employee, the employees’ representative(s), and the local Workforce Investment Board. (12 NYCRR § 921-2.3.) For example, the regulations provide that notice to the Commissioner of Labor and employee representatives must include not only the names and job titles of affected employees, but their addresses as well. (12 NYCRR § 921-2.3(a)(5), (c)(6) Employers must also provide the Commissioner of Labor with a sample of the notice provided to employees. (12 NYCRR § 921-2.3(a)(9).) Notice to the Commissioner of Labor and the local Workforce Investment Board now must indicate when all notices required under the NY WARN Act were sent and the means by which they were delivered to employees. (12 NYCRR § 921-2.3(a)(10), (11), (d)(9), (10).) Notices to employee representatives must indicate when (or whether) notice has been provided to the Commissioner of Labor and the local Workforce Investment Board and the means by which notices were provided to affected employees. (12 NYCRR § 921-2.3(c)(8), (9).) Changes have also been made to the mandatory language to be included in notices to affected employees and their representatives. (NYCRR § 921-2.3(b)(5), (c) (7).) The NY WARN Act already included additional notice elements above and beyond those imposed by the federal WARN, and the revised regulations make notice under the NY WARN Act even more detailed.

Another significant change is that the term "date of layoff" has been revised to mean "the last day an employee is eligible or permitted to work for his/her employer." (12 NYCCR § 921-1.1(c).) The regulation further provides: "The fact that an employer continues to pay an employee after the date of the layoff does not change the employee’s employment status for purposes of this Part. Payments to an employee subsequent to the date of layoff, whether continuing to pay an employee’s normal weekly wage, or for severance pay, vacation pay, personal leave, and other similar benefits, shall not extend the employee’s layoff date." (Id.) However, "[a]n employee does not suffer an employment loss while he/she is reassigned or transferred to an employer-sponsored program, such as retraining or job search activities, as long as the reassignment does not constitute a constructive discharge or other involuntary termination or otherwise trigger an employment loss as set forth above." (12 NYCCR § 921-1.1(f)(2).) Often, employers need to close the employment site in a short period of time and simply cannot provide the required 90-day notice. In such situations, employers will occasionally continue to provide affected employees with their regular pay and benefits after the site closing through the 90-day notice period, and allow employees to use the time as they see fit (e.g., an employment search) or keep the employees on call to assist with the shutdown or other work. On its face, the revisions would seem to prohibit such approach, at least to the extent employers are not "eligible" to perform actual work or are not reporting to an "employer-sponsored program."

There are a number of other significant changes and clarifications to the regulations. The revised regulations clarify which entity bears the burden of providing notice in the sale of a business, a consolidation of all or part of the business, or a merger. (See, e.g., 12 NYCRR § 921-2.1 (b), (c), (d); see also § 921-7.3(a)(2) (regarding effect of merger or consolidation on assessing liability for violations).) The definition of "single site of employment" has been expanded and clarified (12 NYCRR § 921-1.1(p)), as have the look-ahead/look-behind aggregation requirements. (12 NYCRR § 921-2.1(e).) The regulations now include provisions on the application of the NY WARN Act in bankruptcy. (See, e.g., 12 NYCCR § 921-1.1(e)(3); § 921-1.1(f)(3).) The regulations also now provide for notice by email (in addition to the previously approved methods), subject to a number of specific requirements, including that the employer must be able to demonstrate that the email notice was received by the affected employees and that notice must be made by overnight or hand delivery or some other expeditious method if the email is returned as undeliverable. (12 NYCCR § 921-2.2(b)(2).) Again, these are only a sampling of the changes to the regulations. The NYS DOL has posted a redline of the changes to the regulations on its web site: http://www.labor.ny.gov/workforcenypartners/warn/pdfs/Part921_Comparison2-16-10.pdf.

The NYS DOL has also posted the full rulemaking package on its web site: http://www.labor.ny.gov/workforcenypartners/warn/warnportal.shtm.