Be Warned: The New York WARN Act Requires More from Employers
By Sheralyn Mar, Esq.
On August 5, 2008, New York State Governor David Patterson signed into law the New York Worker Adjustment and Retraining Notification Act, better known as the NY WARN Act. The NY WARN Act, modeled after the Federal WARN statute, requires that employers effecting mass layoffs give affected employees 90 days advance notice.1 While the NY WARN Act mirrors many of the provisions of the Federal WARN Act, it has a few striking differences of which New York employers should be aware.The NY WARN Act applies to employers with 50 or more full-time employees; or 50 or more employees, including part-time employees, if total hours worked at the business meet or exceed 2,000 hours per week. In contrast, the Federal WARN Act generally applies to employers with 100 or more employees. Pursuant to the NY WARN Act, advance written notification is required where there is an employment loss of at least 25 employees and 33 percent of the workforce; or a reduction of at least 250 employees. Under both the NY and Federal WARN Acts, employment loss does not include voluntary departure, retirement, termination for cause, or a layoff for less than six months. Each Act does offer some relief to the notice requirements under certain circumstances.
Under the NY WARN Act, employers must provide affected employees with 90 days advance notice of a pending mass layoff, as opposed to the federal requirement of 60 days. Whereas the Federal WARN Act requires that notice be given to the affected employee’s representative (such as a union representative) or the affected employee personally if a representative does not exist, the NY WARN Act specifies that notice be given to both the affected employee and the representative of the affected employee. Notice must also be given to the New York State Department of Labor and certain local workforce investment boards; the federal statute may require notice to additional governmental agencies.
Penalties for violating the WARN Acts include liability to each aggrieved employee who suffers an employment loss as a result of the mass layoff. An employer is liable for a maximum of 60 days of back pay and benefits payable to each aggrieved employee. In addition, failure to notify the required governmental entity may result in a penalty of up to $500 per each violation day.
While similar in many respects, introduction of the NY WARN Act imposes more stringent requirements upon New York employers than the existing federal statute. Keeping these requirements in mind will assist in avoiding stiff penalties and potential legal battles should an employer be forced to effect a mass layoff.
The above article is an overview only, should not be considered legal advice and application of either the Federal, NY or any other state WARN Act will be dependent upon specific facts and circumstances. For more information, please contact Carol J. Patterson or Sheralyn Mar at 212-682-6800, cpatterson@zdlaw.com or smar@zdlaw.com.
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1 If an employer is subject to the Federal WARN Act, it must provide 60 days advance written notification of a pending mass layoff.
