By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.
Effective June 21, 2023, the New York State Department of Labor (“NYSDOL”) amended its regulations governing the New York State Workers Adjustment and Retraining Notification Act (“NYS WARN Act”), available HERE. The NYS WARN Act was originally enacted in 2008 and has since been amended several times, with the most recent amendment in November 2020. Employers with 50 or more employees are required under the NYS WARN Act to provide 90 days written notice of any triggering event, such as a mass layoff or closure, to all affected employees and their representatives, as well as various government entities.
Employers considering reductions in force should be aware of the following important changes to the NYSDOL’s regulations and consider these points to determine whether the NYS WARN Act is triggered and, if so, how to comply with its notice requirements:
- Remote workers based at the employment site now must be included in the employee count to determine whether a company meets the 50-employee threshold for coverage under the Act.
- Notice to the New York State Commissioner of Labor (“Commissioner”) of a triggering event now must be provided electronically and include (in addition to the information previously required under the regulations and any additional information requested by the Commissioner):
- The business and email addresses of the employer’s agent and each affected employee’s representatives;
- The name, address (including home address), personal telephone number, personal email address, job title, work location, basis of payment, and part-time or full-time status of each affected employee, as well as the employee’s affiliation to any employee representative; and
- The total number of full- and part-time employees in New York State and at each affected site, and the number of impacted employees at each affected site.
- Notices to impacted employees, employee representatives, and government entities also have new requirements, including, in part, information for impacted employees on severance packages or financial incentives if the employee remains and works until the effective date of the triggering event, available dislocated worker assistance, and, if applicable, the estimated duration of any temporary triggering event.
- Notice now must be provided to the chief elected official of the unit(s) of local government where the employment site is located, the local school district(s), and the locality that provides police, firefighting, emergency medical or ambulance services, or other emergency services where the employment site is located.
- Sellers are not required to provide the NYS WARN notice if the transfer of employees in a sale was a good faith condition under the purchase agreement and the purchasing employer fails to uphold the condition; rather, the purchasing employer would be responsible for providing notice.
- The “faltering company” exception to the 90-day notice requirement now applies only to plant closings.
- The “unforeseeable business circumstance” exception to the 90-day notice requirement now includes public health emergencies that result in a sudden and unexpected closure and terrorist attacks that directly affect operations.
The updated regulations clarify that, if an employer is unable to provide notice within the required 90-day timeframe due to an exceptional circumstance covered by the Act, it must provide as much notice as is practicable along with a statement of the basis for reducing the notice period. Unless an extension of time is granted by the Commissioner, the employer must submit a request for consideration of eligibility for a claimed exception within ten business days of providing notice to the Commissioner. The new regulations identify specific documentation that the employer must include with its request for application of an exception, including an affidavit by an authorized representative of the employer affirming the veracity of the documents submitted in support of the request. The Commissioner will consider the information provided by the employer when investigating whether the employer qualifies for an exception or is liable for violating the NYS WARN Act.
If you have any questions relating to these regulatory changes or would like assistance preparing required notifications in compliance with the NYS WARN Act, please feel free to reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.