On March 8, 2023, a bill was introduced in the New York Senate proposing modifications to the New York State Worker Adjustment and Retraining Notification Act (“NYS WARN Act”). The bill is currently in the Senate’s Labor Committee. While the proposed bill may be modified, its provisions indicate that the legislature is considering expanding the scope of the NYS WARN Act.
The proposed bill amends some of the definitions in the NYS WARN Act, most notably the definitions of employer, employment loss, and mass layoff. The revised definitions would read as follows (new language is bolded and language in the current law that would be removed is in brackets):
6. "Employment loss" means:
(a) an employment termination, other than a discharge for cause, voluntary departure other than in anticipation of an announced facility closing or mass layoff, or retirement;
(b) a mass layoff exceeding [six] three months;
(c) a reduction in hours of work of more than fifty percent during each month of any consecutive [six-month] three-month period.
"Employment loss" shall not result under circumstances where a [plant] facility closing or mass layoff is the result of the relocation or consolidation of part or all of the employer's business and, before the closing or mass layoff, the employer offers to transfer the employee to a different site of employment within a reasonable commuting distance with no more than a [six-month] three-month break in employment, or the employer offers to transfer the employee to any other site of employment, regardless of distance, with no more than a [six-month] three-month break in employment, and the employee accepts within thirty days of the offer or of the closing or mass layoff, whichever is later.
7. "Employer" means any business enterprise that employs fifty or more employees [excluding part-time employees, or fifty or more employees that work in the aggregate at least two thousand hours per week]. "Employer" shall include any affiliate of an employer. "Employer" shall not include the federal or state government or any of their political subdivisions, including any unit of local government or any school district.
9. "Mass layoff" means a reduction in force which:
(a) is not the result of a [plant] facility closing; and
(b) results in an employment loss for those working at or reporting to a single site of employment during any thirty-day period for twenty or more employees
[(i) at least thirty-three percent of the employees (excluding parttime employees); and
(ii) at least twenty-five employees (excluding part-time employees); or
(iii) at least two hundred fifty employees (excluding part-time employees)].
Additionally, the proposed bill removes the following exceptions from the notice requirement, meaning that notice would now be required even if:
- the employer’s actions were “necessitated by a physical calamity or an act of terrorism or war”;
- the employer was actively seeking capital or business at the time the notice would have been required;
- the need for a notice was not reasonably foreseeable at the time notice would have been required; or
- the closure or mass layoff is a result of a natural disaster.
The proposed bill also limits the commissioner’s discretionary reduction of liability for employers to instances involving natural disasters, removes the maximum time period for determining back-pay and other liabilities for certain employees who experience employment loss, empowers the attorney general to take certain action on behalf of employees, and requires employers to pay severance to employees when there is a closing, relocation, or mass layoff.
This is a developing topic and we will continue to update alerts in order to keep you informed of the latest developments surrounding the NYS WARN Act.
If you have questions regarding the potential modifications to the NYS WARN Act or labor law generally, feel free to contact Brian B. Selchick at 518-788-9426 or bselchick@cullenllp.com, or Jennifer E. Seeba at (516) 296-9173 or jseeba@cullenllp.com.
Please note that this is a general overview of developments in the law and does not constitute legal advice. Nothing herein creates an attorney-client relationship between the sender and recipient.