Compliance with the New York Worker Adjustment and Retraining Notification (NY WARN) Act just got harder (again). On June 21, 2023, the New York Department of Labor's amendments to the NY WARN regulations took effect and some of the changes are sweeping.
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."
New Notice Content Requirements
On top of NY WARN's already long list of notice content requirements, the amended 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.
Revisions to the Sale of Business Provision and NY WARN Exceptions
NY WARN's sale of business provision was amended to clarify that sellers will not have an obligation to give WARN notice 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 that scenario, the purchasing employer would need to provide notice.
Additionally, NY WARN's exceptions, which permit an employer in some cases to give less than the full 90-days' notice to affected employees, remain in place with some tweaks:
- 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.
New Process for Claiming Eligibility for a NY WARN 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. Employers must also provide documentation to demonstrate the applicability of the exception, including a statement explaining the reasons for the layoff, closure, or hours reduction; a description as to why a shorter notice period is required; and an affidavit signed under penalty of perjury confirming the documents are true and correct, among other documentation.
The Commissioner will then conduct an investigation and determine whether the employer qualifies for the exception. Should additional information be needed, the Commissioner may request an investigative conference with the employer and the employer's attorney.
If the Commissioner determines that the employer failed to establish the elements of an exception, the Commissioner will proceed to an enforcement action and determine the employer's liability for violating NY WARN.
Conclusion
NY WARN Act compliance was complicated even before these amendments. The added complexity and potential for liability imposed by the amended regulations make compliance even more difficult. Given the scope and breadth of information that must be provided to the Commission of Labor, notices (and submissions to justify exemptions, if applicable) will take longer to draft and employers must prepare well more than 90 days before a WARN-triggering layoff or closure in New York. As always, employers should consult counsel to help with questions about these amendments and NY WARN more generally.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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