NY WARN Regulations Amended

The New York State Department of Labor (“DOL”) amended the regulations implementing the New York Worker Adjustment and Retraining Notification  Act (“NY WARN”). NY WARN requires employers with 50 or more employees in New York to provide 90 days’ advanced notice in the event of a mass layoff, plant closing, relocation, or reduction in work hours. According to the DOL, the amendments were issued to address the post-pandemic employment climate and to simplify the language of the regulations to ensure businesses understand their obligations under the NY WARN Act. Below is a summary of the major changes to the regulations. 

Clarification Regarding Remote Workers

NY WARN generally only applies to employers that employ at least 50 full-time employees within New York. The amended regulations clarify that full-time employees who work remotely but are based at the employment site in New York State are included to determine if an employer has at least 50 employees. However, the amendments do not explain how employers should determine whether a remote employee is “based at the employment site” or, for employers with multiple employment sites, to which location a remote employee is based.  

Temporary Layoffs

The amendments clarify that temporary layoffs do not trigger the notice requirements of NY WARN. The regulations define a temporary layoff as “a mass layoff with a duration of less than a consecutive six-month period and a planned return of employees after the layoff period ends.” Permanent layoffs, defined as mass layoffs that extend beyond six consecutive months, require notice under NY WARN.

Expanded Notice Requirements

Employers who have issued NY WARN notices in the past are likely aware that the regulations already imposed substantial notice requirements, both with respect to who must be notified and the content of the notices themselves. Under NY WARN, employers must provide notice of a covered employment loss to: (1) the affected employees; (2) any employee representatives; (3) the NY Commissioner of Labor; and (4) the Local Workforce Investment Board where the site of employment is located.  Under the amended regulations, employers must now also notify: (1) the chief elected official of the unit of local government where the site of employment is located; (2) the school district(s) where the site of employment is located; and (3) the locality that provides police, firefighting, emergency medical or ambulatory services, or other emergency services, to the locale where the site of employment is located.

The regulations also expand upon the information that must be included in the notices. For instance, the notice to the Commissioner of Labor must now also include the: (i) complete legal business name and any business names used in the operation of the business; (ii) business and email addresses for the agent of the employer to contact for further information; (iii) names and contact information for each employee representative of the affected employees and the contact information for the CEO of the employee representative; (iv) names, home addresses, personal telephone numbers, personal email addresses (if known), titles, and work locations for each affected employee, as well as basis of payment for each employee (e.g., hourly, salary, commission), any union affiliations, and full- or part-time status of each affected employee; (v) the total number of full- and part-time employees in New York State and at each affected worksite; and (vi) the number of full- and part-time employees affected at each site.

The amended regulations also require additional content in the notice to each affected employee, which must now also include: (1) the complete legal business name and any business names used in the operation of the business; (2) the address of the employment site where the employment loss will occur; (3) the business address and email address of an agent of the employer to contact for further information; and (4) any information known at the time the notice is provided that is relevant to the separation, including information on severance packages or financial incentives if the employee remains and works until the effective date of the employment loss, available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration.

Exceptions to Notice Requirements; Process to Claim an Exception

Under NY WARN, there are specified exceptions under which the 90-day notice period may be reduced or excused. Such exceptions include the faltering business exception, the unforeseeable business circumstances exception (which now specifically includes public health emergencies, such as a pandemic, that results in a sudden and unexpected closure, or a terrorist attack directly affecting operations), the natural disasters exception, and the strikes and lockouts exception.

The amended regulations now require employers to submit a request to the Commissioner of Labor to determine whether an employer qualifies for the claimed exception. To qualify for an exception the employer must send a request for an exception to the Labor Commissioner within ten business days of the required notice being provided to the Commissioner and provide documentation setting forth the applicability of the claimed exception. The regulations detail the types of documentation that may support each exception.

Mitigation of Liability

Under NY WARN, an employer that fails to provide the required amount of notice is liable to affected employees for back pay and the cost of benefits for the amount of the notice period denied to the employee. Historically, an employer’s liability would be reduced by other wages and unconditional payments made to an employee during the period that should have served as the notice period. The regulations add another mechanism to reduce liability: amounts payable to an employee in lieu of notice will be treated as wages with respect to the period of notice, such that an employer’s liability will be reduced where sufficient notice is not provided, if the following conditions are met: (1) there must be an employment agreement or a uniformly applied company policy that requires the employer to give the employee a definite period of notice before separation; (2) the employee must be separated without the required notice; and (3) the employer must pay the employee a sum equal to the employee’s regular wages and the value of the costs of any benefits, or an amount computed in accordance with a formula based on the employee’s past earnings and benefits costs, for the required period of notice.

Whether an employer’s planned employment action is covered by federal and/or state WARN statutes is often a complicated question involving many factors including timing, location, the size of the employer, and the number of impacted employees. Employers who have questions about the amended regulations, whether their employment decisions would trigger federal and/or state WARN requirements, and how to effectuate proper notice under these laws, should contact Kate Townley at ktownley@fglawllc.com, or any attorney at the Firm. 

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