Amendments to the New York State Adjustment and Retraining Notification Act (“WARN Act”) adopted in June 2023 are now in effect. The amendments expand the scope of the WARN Act.
The WARN Act requires covered businesses to provide 90 days’ notice prior to mass layoffs or closures to all affected employees and employee representatives, as well as to the Commissioner of Labor and Local Workforce Development Boards. The WARN Act currently applies to private businesses with 50 or more full-time employees in New York. Currently, the Act covers:
- Closings affecting 25 or more employees,
- Mass layoffs involving 25 or more full-time employees, as long as the 25 or more employees make up at least one-third of all employees at the place of employment, and
- Mass layoffs involving 250 or more full-time employees.
The amendments expand the WARN Act in large part as follows:
- Employers covered include any business that employs 50 or more employees, whether or not they are full-time.
- The scope of employees that counts toward the 20-employee threshold for a “mass layoff” is expanded to include remote employees (in comparison to currently only including the employees “at” the site of employment), both part-time and full-time employees, employees who resign in anticipation of a facility closing, and employees placed on furloughs lasting more than three months (currently only applies to furlough that is for more than six months).
- New process by which employers seek an exception from the 90-day notice period requirement. The employer must submit certain required documentation demonstrating eligibility for the exception to the Commissioner of Labor, who will then decide whether an exception is warranted.
- The “unforeseeable business circumstances” exception to the notice requirement has been amended to include public health emergencies, such as a pandemic “that results in a sudden and unexpected closure” as an additional situation that may excuse full compliance with WARN.
- Notices can be provided electronically.
In addition to the governmental entities that already must receive notice, the employer must also notify (1) the chief elected official of the unit of local government, (2) the school district[s] where the site of employment is located, and (3) the locality that provides police, firefighters, and other emergency services where the employment site is located.
Moreover, employers are now required to give notice even when:
- The employer’s actions were due to a physical disaster or an act of terrorism,
- The employer was actively seeking capital or business at the time notice was required,
- The need for notice was not reasonably foreseeable, and
- The closure or mass layoff was due to a natural disaster.
In lieu of notice, severance may be paid to employees, subject to a number of conditions:
- There must be an employment agreement or a uniformly applied company policy that requires that the employer give the employee a definite period of notice before a layoff or separation.
- The employee must be laid off or separated without the required notice.
- The employer must pay the employee a sum equal to the employee’s regular wages and the value of the costs of any benefits, or an amount computed in accordance with a formula based on the employee’s past earnings and benefits costs, for the required period of the notice.