Jan 26, 2009

New York WARN Act

On August 5, 2008, New York Governor David Patterson signed into law the New York State Worker Adjustment and Retraining Notification Act (“New York WARN Act” or “the Act”). The Act, that goes into effect on February 1, 2009, is patterned after its federal counterpart, but it contains a number of differences that impose additional burdens on employers operating in the state.

  • The New York WARN Act extends the notice requirement to employers with 50 or more employees and requires that they give 90 days advance written notice. New York’s notice requirement extends also to “relocations” or “employment losses,” as those terms are defined by the Act. The statutory language is unclear as to whether the notice requirement is triggered by a “plant closing.”

  • The layoff must affect (i) at least 33% of the employees and at least 25 employees, or (ii) at least 250 employees. The Act applies only to full-time employees.

  • A “plant closing” under the New York WARN Act occurs where there is a “shutdown” of a single employment site (or of one or more facilities or operating units within a single site) that results in employment losses of at least 25 full-time employees over a 30-day period.

  • As stated above, the New York WARN Act’s notice requirement extends to a “relocation” or “employment loss.” A “relocation” is defined as the removal of all or substantially all of the industrial or commercial operations of an employer to a different location 50 miles or more away. An “employment loss” occurs where there is (i) an employment termination, other than a discharge for cause, voluntary departure, or retirement; (ii) a mass layoff exceeding six months; or (iii) a reduction in hours of work of more than 50% during each month of any consecutive six-month period. In addition, the law provides that a plant closing does not constitute an “employment loss” in certain situations where the closing is the result of a relocation or consolidation of part or all of the employer’s business, and the employer offers to transfer the affected employees to a different site.

  • Like the federal Act, the New York WARN Act permits employees who are terminated without the proper notice to bring a civil action against their employer. However, the New York Act additionally empowers the Commissioner of Labor to enforce the Act and to make determinations of violations and liability.

Some provisions of the Act will need to be clarified by the New York Commissioner of Labor. For instance, based on the definition of an “employment loss,” an employer may presumably be subject to the notice requirement even if only one employee is affected. In addition, although a “plant closing” is mentioned in the definition of an “employment loss,” it is not specifically listed as a triggering event in the actual notice provision.

To learn how to protect your business from the New York WARN Act, please be sure to contact your employment counsel at Smith, Gambrell & Russell, LLP.


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