Amendments to New York WARN Act Now in Effect

Amendments to the New York State Worker Adjustment and Retraining Notification Act (NY WARN Act) that the New York State Department of Labor (NY DOL) adopted in June 2023 are now in effect. Among other things, the amended regulations:

• count remote workers as being employed at the site of employment where they are "based"
• revise the content of a WARN notice and to whom it must be provided
• address who is responsible for providing notice when a business is sold
• clarify that the faltering business exception applies only to plant closings, not to mass layoffs
• provide additional examples of situations that will satisfy the unforeseeable business circumstance exception, including pandemics
• require employers to submit detailed information and documentation to the NY DOL in advance to request a determination as to whether one of the exceptions to the NY WARN Act applies to a particular situation.

NY WARN Act Basics

Under the NY WARN Act, employers with 50 or more full-time employees at a single site of employment in New York State are required to provide employees with ninety (90) days' advance notice before a "mass-layoff" or "plant closing," as defined in the NY WARN Act.

A "mass-layoff," which triggers an employer's obligation to provide the 90-day notice, occurs when:

• at least 33% of the active employees (excluding part-time employees) at a single site of employment experience an employment loss, provided that the total number of active employees (excluding part-time employees) who lose their jobs exceeds 25, or
• at least 250 employees (excluding part-time employees) experience an employment loss.

An employer must also provide the 90-day notice when there is a "plant closing," defined as a permanent or temporary shutdown of a single site of employment or a facility or operating unit within a single site of employment, where 25 or more employees (excluding part-time employees) experience an employment loss.

Remote Workers Now Included in Single Site of Employment

Under the amendments, employees who work remotely but who are "based out of" a site of employment will be counted in determining whether the numerical thresholds have been met for coverage under the NY WARN Act or for determining whether a mass layoff of plant closing has occurred. The revised regulations do not describe how to determine where a remote employee is "based." Considerations will likely include where the employee's supervisor is located or the location from which the employee receives assignments.

Content and Recipients of Notice

The notice provided to the New York Commissioner of Labor must now include:

• "[t]he complete legal business name, and any business names used in the operation of the business";
• business addresses and email addresses for the employer's and employees' agents;
• the personal telephone number, personal email address (if known), job title, work location, full-time or part-time status, method of payment (i.e., hourly, salary, or commission basis), and union affiliation of each employee to be laid off;
• the total number of full-time and part-time employees in New York State and at each affected site;
• the number of affected full-time and part-time employees at each affected site; and
• "[a]ny additional information required by the [c]ommissioner."

In addition to providing notice to the chief elected official of the local government where the affected site is located, employers must now also provide notice to the school district and the locality that provides police, firefighting, emergency medical or ambulance services, or other emergency services.

The notice to affected employees must now include:

• the complete legal business name and any business names used in the operation of the business;
• the address of the affected employment site;
• the separation date;
• the business address and email address of the employer's agent;
• information on severance packages or financial incentives if an employee continues to work until the effective date of the planned action;
• available dislocated worker assistance; and
• the estimated duration if the planned action is expected to be temporary.

Sale of Business

When a mass layoff or plant closing occurs in the context of a sale of a business, the selling employer must provide the NY WARN Act notice to affected employees.

Under the amended regulations, however, "[i]f the transfer of employees is a good faith condition of the purchase agreement, and that condition is not upheld by the purchasing employer, the purchasing employer is obligated to provide notice and the selling employer is relieved of such obligation."

Exceptions

The NY WARN Act includes several exceptions under which an employer may be able to provide less than 90 days' notice to affected employees, including where there are "unforeseeable business circumstances" and for a "faltering business." Even if an exception applies, an employer still must provide as much notice as practicable.

The amended regulations answer a question many employers faced during the COVID-19 pandemic by specifying that the "unforeseeable business circumstances" exception includes "a public health emergency, including but not limited to a pandemic, that results in a sudden and unexpected closure, [and] a terrorist attack directly affecting operations."

Under the amended regulations, the "faltering business" exception is now only applicable to plant closings, not mass layoffs, mirroring the federal WARN Act

Process to Claim Exception

The amendments create a process an employer must now follow to determine whether one of the exceptions to the 90-day notice period applies to a particular situation. Employers must now submit a request to the Commissioner of Labor "within ten business days of the required notice being provided to the Commissioner, unless an extension of time is granted by the Commissioner." The request must include "documentation demonstrating the applicability of an exception." Employers must also submit an affidavit containing "a declaration signed under penalty of perjury" stating that the documentation submitted to the commissioner is "true and correct."

Next Steps

Employers who are contemplating a mass layoff or plant closing should consult with counsel to make sure that they comply with the requirements of the revised NY WARN Act regulations. An employer who intends to invoke one of the NY WARN Act exceptions to the requirement to provide the 90-day notice should plan in advance in order to submit a timely request to the Commissioner of Labor and seek legal counsel to assist with gathering the proper documentation and information that must be included with the request.

Please reach out to DWT's employment group if you have any questions or need assistance with planning for a mass layoff or plant closing.