On January 30, 2009, the New York Department of Labor issued an Emergency/Proposed Rule (proposed via New York State Register of February 18, 2009) which creates a new section of regulations to help clarify the ambiguous statutory language of the New York State Worker Adjustment and Retraining Notification Act (NY WARN), which went into effect on February 1, 2009 (see the September 2008 issue of The New Jersey eAuthority). This Emergency Rule is subject to a public comment period and will expire on April 29, 2009. 

Among its many noteworthy sections, the Emergency Rule provides new requirements concerning the form of notice provided to affected employees and others (including a new required statement to employees concerning unemployment insurance, a letterhead requirement, and a prohibition against emailing notices). The Emergency Rule also provides new or modified definitions of many terms including: “affected employee” (now including employees who may reasonably be expected to experience an employment loss as the result of a relocation, covered reduction in hours, or anticipated bumping); “employer” (now confirming that independent contractors and subsidiaries may be treated as separate employers depending on the circumstances); “employment loss” (now discussing shared work programs, employer-sponsored programs, and certain transfer offers); “mass layoff” (clarifying that the date of an employee’s layoff is the date on which the employee is no longer employed by the employer – an employer’s payment of severance pay, vacation pay, personal leave or other similar benefits does not extend the layoff date); “reasonable commuting distance” (with detailed examples); and “temporary” employment (with detailed examples, and noting that “at-will” employment is not automatically temporary employment).

The Emergency Rule also provides a detailed procedure for administrative enforcement of the Act by the Commissioner of Labor, as well as for appellate review of a ruling by the Commissioner. Further, the Emergency Rule clarifies that an employer that fails to give notice is subject to a civil penalty of not more than $500 for each day of the employer’s violation in the aggregate (not individually for each affected employee), and provides a method to avoid the civil penalty by promptly paying the total amount owed to the employees within three weeks of the date the employer orders the reduction in force.

Note: This article was published in the March 2009 issue of the New Jersey eAuthority.

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