On February 1, 2009, New York introduced its own version of the WARN Act titled “New York’s Worker Adjustment and Retraining Notification Act” (“NY WARN Act”).[1] Modeled after the federal WARN Act, the NY WARN Act created more expansive measures and protections for New York employees. In fact, the NY WARN Act continues to broad its reach almost 15 years later. Following in the footsteps of New Jersey, the New York Department of Labor (“NY DOL”) issued amendments to New York’s own WARN Act, which have been effective since June 21, 2023.[2]
Compared to the federal WARN ACT, the NY WARN Act has a lower triggering threshold for protections. The NY WARN Act covers employers with 50 or more full-time employees, excluding part-time workers.[3] The Act is triggered when “employment loss at a single site of employment … [results in the termination of] (i) at least thirty-three of [full-time employees] … and (ii) at least twenty-five [full-time] employees … or (iii) at least two hundred fifty [full-time] employees.”[4]
Notice Period of 90 days
Since its enactment, the NY WARN Act has required employers provide 90 days’ written notice to employees who are affected by a “mass layoff, relocation, or employment loss.”[5] The written notice must also be sent to:
- the affected employees’ representatives;
- the New York Commissioner of Labor;
- The Local Workforce Investment Board established pursuant to the federal Workforce Investment Act;
- the chief elected official of the unit or units of local government where the affected site of employment is located; and
- each locality which provides police, firefighting, emergency medical or ambulance services or other emergency services where the affected site of employment is located.[6]
Under the amended NY WARN Act, the notice to the Commissioner must contain detailed information including:
- the businesses and email addresses of the employer’s and employees’ representative(s)
- the personal telephone numbers, email addresses, work locations, part-time/full-time status, and payment method (i.e., hourly, salary, or commission basis) of each employee to be laid off.
- the total number of full-time employees in New York at each affected site, as well as the total number of affected full-time employees at the site
- the total number of part-time employees in New York at each affected site, as well as the total number of affected part-time employees at the site.[7]
New Process for Claiming Exceptions
The most significant change to the NY WARN Act is the amended process on how an employer may seek an exception to the 90-day notice requirement. Under the amended act, employers must now submit certain required documents to the Commissioner that demonstrate their eligibility for exception. The Commissioner will then decide if exception is warranted. The required documentation, which must be sent within 10 business days of issuing the required NY WARN Act notice to the Commissioner, includes:
- A statement describing the reason for the need to close the business, perform a mass layoff or reduce work hours;
- A description for the basis for a total exemption or reduced period of notice;
- Any relevant documents that would help determine whether the employer is eligible to avail itself; and
- An affidavit verifying the contents of the documents contained in the record.[8]
Once the Commissioner receives the documents, they will conduct an investigation to determine if the employer qualifies for an exception. If the Commissioner finds the employer failed to provide sufficient evidence, the employer’s exception request will be denied, and the Commissioner “will continue the enforcement action for determining the employer’s liability for violation of the Act.” [9]
Since its enactment, the NY WARN Act has granted employers five exceptions to the 90-days’ notice rule:
- faltering company
- unforeseeable business circumstances
- natural disaster or an act of terrorism
- the plant closing is of a temporary facility or the plant closing
or mass layoff is the result of the completion of a particular project
or undertaking, and the affected employees were hired with the
understanding that their employment was limited to the duration of the
facility or project or undertaking - a lockout or strike is the reason for the employment losses.[10]
The amended NY WARN Act provides a few revisions to some of the exceptions listed above. The faltering company exception now only applies to a “plant closing,” it no longer applies to mass layoffs.[11] Therefore, employers who engage in mass layoffs can no longer rely on the faltering company exception. Additionally, the amendment now allows public health emergencies, such as a pandemic, “that result[] in a sudden and unexpected closure” of a business as an exception under the unforeseeable business prong.[12]
Inclusion of Remote Work
Originally, the NY WARN Act applied to employers with 50 or more full-time employees in the state of New York.[13] Now, the amendment has expanded this definition to count individuals “who work remotely but are based at the employment site” towards the 50-employee threshold requirement.[14] However, the amendment remains silent as to whether an employee can be fully remote and still be “based at the employment site.” This uncertainty can yield varying results. In one instance, an employer who has five remote workers and 45 in-person workers may be considered a covered employer per the NY WARN Act definition. On the other hand, the definition could imply only hybrid work would satisfy the requirements, i.e., a remote worker is only counted if they usually work from home but will occasionally visit the “employment site” in-person. Due to the expansion of remote work, courts will need resolve this uncertainty.
Unlike New Jersey’s amended WARN Act, the NY WARN Act still excludes part-time employees from being counted for purposes of determining coverage as an employer.[15]
Temporary and Permanent Layoff Definitions
The amended NY WARN Act clarifies regulations for temporary layoffs versus permanent layoffs. Temporary layoffs do not trigger an employer’s notice requirements since now they are defined 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.”[16] On the other hand, permanent layoffs do trigger the notice requirements because they are mass layoffs “that extend[] beyond a consecutive six-month period.”[17]
[1] New York State Worker Adjustment and Retraining Notification Act, N.Y. Lab. L. § 860 (https://www.nysenate.gov/legislation/laws/LAB/A25-A); See also Carol M. Goodman, The New York WARN Act: How Does it Affect Your Company?, HERRICK (Jan. 2009), https://www.herrick.com/publications/the-new-york-warn-act-how-does-it-affect-your-company/.
[2] Evandro Gigante et al., New York State Department of Labor Releases Updated NYS WARN Act Regulations, Law and the Workplace (July 28, 2023), https://www.lawandtheworkplace.com/2023/07/new-york-state-department-of-labor-releases-updated-nys-warn-act-regulations/.
[3] N.Y. Lab. L. § 860-a(3).
[4] N.Y. Lab. L. § 860-a(4)(b)(i)-(iii).
[5] N.Y. Lab. L. § 860-b(1).
[6] N.Y. Lab. L. § 860-b(1)(a)-(e).
[7] § 921-2-3(a)(1)-(14) (https://dol.ny.gov/system/files/documents/2023/03/2023-warn-regs-3-9-23-2.pdf).
[8] § 921-3.1.
[9] § 921-6.6(d).
[10] N.Y. Lab. L. § 860(c) & (d).
[11] § 921-6.2(a).
[12] § 921-6.3(a).
[13] N.Y. Lab. L. § 860-a(3).
[14] § 921-1.1(e)(7)(i).
[15] N.Y. Lab. L. § 860-a(1)(A).
[16] § 921-1.1(f)(1)(iii)(d).
[17] Id.