New York State Department of Labor Further Revises WARN Act Requirements
On July 9, 2010, the New York State Department of Labor (NYSDOL) filed a new and revised Notice of Emergency Adoption and Proposed Rule Making implementing the New York State Worker Adjustment and Retraining Notification (NY WARN) Act. Effective on the date of filing, the new and revised regulations supersede and replace all former rules.
The NY WARN Act requires private employers with 50 or more employees in New York State to provide 90 days notice prior to a plant closing, mass layoff, relocation, or other covered reduction in work hours.
The NY WARN Act covers plant closings affecting 25 or more employees, mass layoffs involving 25 or more employees (if the 25 or more employees comprise at least 33% of all the employees at the worksite), mass layoffs involving 250 employees (regardless of what percentage of the workforce is involved), and certain other relocations and covered reductions in work hours. Part-time employees are not included for purposes of deciding whether notice is required. However, once notice is required, part-time employees who will be affected by the employer's action are entitled to receive the notice.
New Changes
1. A new section was added relating to the rescission of notice of a plant closing, mass layoff, relocation or covered reduction in hours. This section provides that if, after the required notice is given, an employer determines it will continue its operations and that the announced plant closing, mass layoff, relocation, or covered reduction in hours will not occur, the employer is required to give a notice of rescission as soon as possible after such determination is made. The notice of rescission must include reference to the earlier notice, the reason why such action is no longer required, and must meet all of the requirements of the original notice as to parties entitled to notice.
2. The definition of "affected employee" was changed to exclude an officer, director, or shareholder, as well as a business partner, a consultant or contract employee who has a separate employment relationship with another employer and is paid by that employer or is self-employed.
3. The required statement giving notice must now inform the employee that she may be eligible for unemployment insurance after her last day of employment, and further inform her that she can obtain information on employment assistance and unemployment benefits from the NYSDOL's local offices.
4. Although the NY WARN Act already empowered the NYSDOL to recover back wages and benefits on behalf of employees and impose civil penalties (up to $500 for each day of violation) against employers that fail to provide the required notice, the new regulations state that an employer would not be subject to a civil penalty only if the employer pays each affected employee the total amount for which the employer is liable, including back pay and all fringe benefits, within three weeks from the employee's date of layoff. Paying employees their regular wages and benefits over the period of violation (that exceeds three weeks) would not exempt the employer from civil liability.
5. The administrative review requirements were revised to provide that the Commissioner of Labor is to notify an employer of any violations identified and the amounts due for wages, benefits, and/or penalties associated with such violations. The Commissioner is not to issue an order or determination addressing such violations without first holding a hearing on the matter, unless the employer waived such right pursuant to a settlement upon terms accepted by the Commissioner.
As is rather obvious, the NY WARN Act requirements are fairly complicated and difficult to understand. As such, to guarantee complete compliance with this law, it is always recommended that employers first consult with a New York WARN Act attorney.
