In August 2008, Gov. David Patterson signed the New York State Worker Adjustment and Retraining Notification Act (S.8212) (the “NY WARN Act”) into law. Although the NY WARN Act, effective Feb. 1, 2009, imposes requirements on employers similar to those required by the federal Worker Adjustment and Retraining Notification Act (the “Federal Act”), 29 U.S.C. §§2101-2109, there are some important differences.
The Federal Act generally requires employers of 100 or more full-time employees to provide at least 60 days’ advance written notice regarding plant closings or mass layoffs to the affected employees’ representative or, if none, to the affected employees themselves. The Federal Act also requires that employers notify the state dislocated worker unit and the local government. The NY WARN Act requires New York employers with 50 or more employees to provide 90 days’ advance written notice in the event of a mass layoff, relocation or employment loss1 to the affected employees, the representatives of the affected employees, the New York State Department of Labor and the local workforce boards.
The NY WARN Act also has lower minimum thresholds than the Federal Act for determining whether a triggering event requires mandatory notice. Specifically, the NY WARN Act expands the definition of “mass layoff” to include employment losses at a single site of employment that affect: (1) at least 25 full-time employees (as opposed to the 50 employee minimum of the Federal Act) so long as they represent at least 33 percent of the total active workforce; or (2) at least 250 full-time employees (as opposed to the 500 employee threshold of the Federal Act).
The NY WARN Act also requires notice in the event of a plant closing resulting in an employment loss affecting 25 full-time employees (as opposed to the 50 employees required pursuant to the Federal Act) during a 30-day period.2
Affected employees and their representatives may pursue claims against employers as individuals or as members in representative actions for violations of the NY WARN Act. Such employees may be entitled to back pay and the cost of benefits for the employer’s violation, up to a maximum of 60 days or one-half the number of days the employee was employed by the employer, if fewer. Employers may also be required to pay civil penalties of not more than $500 for each day of the violation. The NY WARN Act also grants the New York State Department of Labor the authority to prescribe rules necessary to enforce the Act, and to make determinations regarding violations and liability. Any payment made pursuant to the Federal Act constitutes payment under the NY WARN Act, and penalties cannot exceed the maximum federal penalty for the same violation.
Both the NY WARN Act and the Federal Act provide exemptions for employers from the notice requirements under certain limited circumstances, including good faith and active attempts to secure financing, strikes/lockouts, and unforeseeable business circumstances, such as natural disasters. The NY WARN Act provides additional exemptions for a “physical calamity” or “an act of terrorism or war.”
1 The NY WARN Act definition of “employment loss” could be construed to apply to individual terminations, but “employment loss” is also defined to include a “mass layoff.” It is likely, therefore, that the NY WARN Act was not meant to apply to individual terminations, as this would negate the “mass layoff” language.
2 The NY WARN Act does not specifically include “plant closing” as an event requiring 90 days’ advanced notice, nor is the term included in the definition of “employment loss.” The NY WARN Act, however, seems to require 90 days’ notice in the event of a “plant closing” because the term “affected employees” is defined as those “who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff by their employer.”