The New York Department of Labor has further revised its Emergency Regulations concerning the NY WARN Act, as detailed in published comments in the July 15, 2009 NYS Register. As we have advised previously, the NY WARN Act is far broader in scope than the federal WARN Act, in that it covers smaller employers (those with 50 or more employees, as compared to 100 or more employees), smaller job losses (a mere 25 employees satisfy certain thresholds, as compared to 50) and requires 90, rather than 60, days advance notice of covered employment losses. Among the new changes and comments to the Emergency Regulations:
- Employees cannot waive their rights under the NY WARN Act;
- Notice is not required under the NY WARN Act merely because of a sale of a business, but is required where employees suffer a job loss (presumably, a job loss affecting enough employees to meet the threshold for a plant closing, mass layoff or covered reduction in hours, although this is unclear);
- The definitions of “relocation” and “single site of employment” have been modified; and the rules concerning the aggregation of employment losses over a 90-day period have been revised to track the federal WARN Act;
- Employers can send notice under the NY WARN Act to employees by email, provided the employer can prove the email was received and opened by each affected employee; and
- Employers are cautioned that they cannot use the NY WARN Act exceptions (such as faltering company and unforeseen business circumstances) hastily, and that the “stringent requirements of proof ... are not easily met. The New York Department of Labor will apply all exceptions narrowly.”
These revisions to the NY WARN Emergency Regulations (Part 921) will expire on August 24, 2009, but will either be revised further, extended, or adopted as a permanent rule on or about that date.