The New York State Department of Labor (NYS DOL) amended its Worker Adjustment and Retraining Act (NY WARN) regulations, which took effect on June 21, 2023. Both NY WARN and its federal counterpart require covered businesses to provide advance notice of closures and layoffs to the Commissioner of Labor and affected employees. The NY WARN regulations are more expansive than the federal WARN regulations, defining “covered business” as any private business employing 50 or more full-time employees in New York. As outlined below, it also has stricter notice requirements.
The NYS DOL has noted that the NY WARN regulations were revised this year to address the post-pandemic employment climate. Specifically, the NYS DOL website provides that the regulations seek to clarify how remote work impacts NY WARN Act compliance and simplify language to ensure businesses better understand their obligations.
- Treatment of remote workers. Remote workers who are “based” at an employment site are counted towards the 50 or more full-time employee threshold for purposes of calculating whether an employer is “covered” under the regulation.
- “Temporary” versus “permanent” layoffs. The amended regulations differentiate between “temporary” and “permanent” layoffs. A temporary layoff is 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,” and is not subject to all notice requirements. A permanent layoff is defined as “a mass layoff that extends beyond a consecutive six-month period for which the employer must comply with the notice requirements… from the time of the employment loss.”
- Additional notice provisions. Notice must be provided to the Commissioner of Labor at least ninety (90) days in advance of the planned separation. In addition to previously enumerated, unchanged notice requirements, the amendments set forth the following additional requirements for notice to the Commissioner: (i) the complete legal business name and any business names used in the operation of the business; (ii) the name, business address, telephone number, and email address(es) of the agent of the employer for contact purposes, an employee representative, and the employer’s liaison with the DOL; (iii) the name, address (including home address), personal telephone numbers, personal email address(es), job title, and work locations of each employee to be laid off; (iv) the expected date of the first separation of each employee and the anticipated schedule of any additional separations; and (v) the total number of full-time employees and 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. Further, notice must identify for each employee whether they are paid on an hourly, salary, or commission basis; are part-time or full-time; and indicate any affiliation to an employee representative.
- Exceptions to the 90-day notice period. An employer must present a request for consideration for eligibility for a claimed exception to the notice period requirements within ten (10) business days of the required notice to the Commissioner. The Commissioner will then investigate and make a determination regarding the employer’s eligibility for exception.
- Sale of a business. The amendments clarify that in the event of the sale of a business, if the transfer of employees is a good faith condition of the purchase agreement, and the purchasing entity does not uphold that condition, then the purchasing employer is obligated to provide requisite notice. The selling employer is therefore relieved of the obligation.
Covered employers that anticipate conducting closures, layoffs, relocations, or reductions in work in the near-term should take note and become familiar with the amended requirements to ensure compliance with the amended NY WARN, as well as federal, requirements.
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