The New York State Worker Adjustment and Retraining Notification Act (“NY WARN Act”) requires covered businesses to provide early warnings of closures and layoffs to all affected. Recently, the New York Department of Labor issued final regulations making changes to the NY WARN Act regulations and on June 21, 2023, those amendments took effect. Some of the notable changes include the following:
- Employee Count for Employer Coverage
Under the amended regulations, the definition of a covered employer is expanded to count not just employees at a single site of employment in the state, but also employees who work remotely but are “based at the employment site.” Therefore, the 50-employee count for coverage as an employer, includes those employees as long as they are “based” at the employment site in New York.
- Revisions Relating to Business Transactions
The regulations were amended to clarify that sellers will not have an obligation to give WARN notice of the sale of a business if the transfer of employees in the sale is a good-faith condition of the purchase agreement, and the purchasing employer does not uphold that condition. In cases such as this, the purchasing employer is obligated to provide WARN notices.
- Amendments to WARN Act Exceptions
The NY WARN Act exceptions permit an employer to give less than the full 90-days’ notice to affected employees in certain circumstances. Pursuant to the amendments, the faltering company exception is now applicable only to plant closings (mirroring the federal WARN Act).
The unforeseeable business circumstances exception was amended to include public health emergencies, such as a pandemic, that result in a sudden and unexpected closure, and a terrorist attack directly affecting operations as new examples of circumstances that would qualify for this exception.
The amended regulations now require that employers submit a request to the Commissioner to be considered eligible for an exception. The request to the Commissioner must be submitted within 10 business days of the required WARN notice being provided to the Commissioner unless an extension of time is granted.
- New Notice Requirements
The revised regulations add that the notice to the New York Commissioner of Labor must include:
- business addresses and email addresses for the employer’s and employees’ agents;
- the personal telephone numbers, personal email addresses (if known), work locations, part-time/full-time status, method of payment (i.e., hourly, salary, or commission basis), and union affiliation for each affected employee;
- the total number of full-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site; and
- the total number of part-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site.
Notice to affected employees must now also include relevant information known at the time of the notice, such as information on severance packages or financial incentives if the employee remains and works until the effective date of the layoff, available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration.
What Employers Should Do Now:
Employers should review the NY WARN Act regulations and familiarize themselves with the requirements to ensure compliance in the event of a closure or mass layoff. Should you have any questions relating to the amendments or any of the NY or federal WARN Act requirements, please contact Ali Law Group.
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