All Employers with NY Employees
June 21, 2023
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The New York State Department of Labor (NYSDOL) issued its final updated regulations to the New York State Worker Adjustment and Retraining Notification Act (NY WARN Act). The NY WARN Act is more strict than its federal counterpart and has additional definitions for what constitutes a mass layoff. The updates address how to count remote employees, transferring employees as a condition of a purchase agreement, and additional notice requirements. The key changes are the following:
Covered Employer. Employers must now count full-time remote employers who are based at the employment site and not just the employees who are physically at a single site of employment in order to assess whether the employer meets the 50-employee count for applicability.
Notice Requirements. NY WARN requires notice to both the New York Commissioner of Labor and to affected employees. These notices now have additional required content. The notice to the Commissioner must now include: 1) business addresses and email addresses for the employer’s and employees’ agents; 2) 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; 3) 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 4) 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.
The notice to affected employees must now include additional information, if known: 1) information on severance packages or financial incentives for employees who work until the effective date of the layoff; 2) available dislocated worker assistance; 3) estimated duration of any temporary layoff; 4) complete legal business name and any business names used in the operation of the business; 5) address of the affected employment site; 6) separation date; and 7) business address and email address of the employer’s agent.
In addition to these changes, employers also now have to provide notice to the following entities that are located near the site of employment: the chief elected official of the unit or units of local government; the school district; and the locality that provides police, firefighting, emergency medical or ambulance services, or other emergency services.
Exceptions to NY WARN. If a transfer of employees is part of a purchase agreement, the seller is relieved of liability if the purchaser does not provide employees with required notice. NY WARN already permits employers to give less than the full 90-days’ notice to affected employees but additional changes now clarify: 1) the faltering company exception is applicable only to plant closing; and 2) the unforeseeable business circumstances exception now includes public health emergencies resulting in a sudden and unexpected closure, like a pandemic, or a terrorist attack that directly affects operations.
Employers must request an exception from the Commissioner. The request must be submitted within 10 days of providing the required notice to the Commissioner. Documentation supporting the exception includes: 1) a statement explaining the reasons for the layoff, closure, or hours reduced; 2) description of why a shorter notice period is required; and 3) and an affidavit signed under penalty of perjury confirming that the documentation and statements are true and correct. The Commissioner has the right to conduct an investigation to determine whether an exception is applicable.
- Review the updated regulations here.
- Consult with legal counsel prior to implementing a plant closing, mass layoff, relocation, or a reduction in work hours.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase