On February 12, 2010, the New York Department of Labor (NY DOL) issued substantially revised Emergency Regulations under the state Worker Adjustment and Retraining Notification Act (NY WARN) (12 NYCRR Part 921).

As we have advised previously, the NY WARN Act is far broader in scope than the federal WARN Act in that it covers smaller employers (those with 50 or more employees, as compared to 100 or more employees), smaller job losses (a mere 25 employees satisfy certain thresholds, as compared to 50) and requires 90, rather than 60, days advance notice of covered employment losses. These revised Emergency Regulations became effective immediately upon filing (notwithstanding that they are referred to as a “Proposed Rulemaking” until they are adopted as a permanent rule) and replace the former regulations filed by the NY DOL in January of last year.

Among the changes in the new Emergency Regulations:

  • There are new requirements as to what must be included in the Notice to the Commissioner of Labor, the Notice to Affected Employee, the Notice to the Representative of Affected Employee and the Notice to the local Workplace Investment Board;
  • The definitions of “affected employee,” “consolidation of all or part of a business,” “employer,” “employment loss,” “hours of work,” “mass layoff,” “relocation” and “single site of employment” have been clarified and definitions for “date of layoff” and “merger” have been included. The new “date of layoff” definition clarifies that an employer cannot avoid its notice obligations by simply keeping its employees on the payroll without requiring them to come to work (although an employer can avoid liability by paying its employees all wages and benefits due under the Act within three weeks of the employees’ last day of work);
  • The process by which email notice to affected employees may be given has been clarified;
  • Like with temporary employees, an employer is not required to provide notice to a seasonal employee if the closing or layoff results from the completion of a particular seasonal project or undertaking;
  • The deadline for the employer to either pay the amount owed because of a violation, or request a hearing, has been modified;
  • The NY DOL has agreed to now keep confidential the names and addresses of employees appearing on WARN notices; and
  • The regulations now include a preservation of other rights and remedies provision that sets forth that compliance with the NY WARN Act does not exempt an employer from complying with any other statute (such as the federal WARN Act) or obligation (such as under a collective bargaining agreement).

According to the NY DOL, since the NY WARN Act took effect on February 1, 2009, the agency has issued four Notices of Violation, collected $7,500 in penalties, secured voluntary payments from numerous employers that were issued a potential Notice of Violation, and has approximately 20 additional investigations pending.

Ogletree Deakins attorneys have navigated numerous New York employers through the NY WARN Act, and are available at any time to discuss this new Emergency Regulation in further detail.

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