We previously reported on amendments to the New Jersey mini-WARN Act (known officially as the Millville Dallas Airmotive Plant Job Loss Notification Act ) (NJWARN), which were set to take effect on July 19, 2020. These amendments revise the NJWARN act in many significant ways, including:
- Expanded Notice Requirement: An employer that has 100 or more employees must provide at least 90 days’ notice before the first employee is discharged as part of a mass layoff, termination of operations, or transfer of operations. The existing NJWARN law requires only 60 days’ notice.
- Mandatory Severance Requirement: In addition to notice (i.e., even if correct notices are provided to the required recipients, at the right time), employers must provide discharged employees with “severance pay equal to one week of pay for each full year of employment.” Under the existing NJWARN law, an employer is only required to pay severance as a penalty if it fails to provide the required notice.
- Lower Threshold for Mass Layoffs: A mass layoff impacting at least 50 employees at or reporting to an establishment triggers NJWARN law, even if fewer than 33 percent of the employees at the establishment are impacted. Under the existing law, a layoff must result in the discharge of at least (1) 500 employees at the establishment or (2) 50 employees representing at least 33 percent of the total workforce of the establishment. The new law eliminates the 500-employee prong and the “33 percent” requirement from the 50-employee prong.
- Expanded Counting and Coverage of Part-Time Employees: Employers must include part-time employees in both the 100-employee (for a covered employer) and 50-employee (for a termination of operations or a mass layoff) thresholds. Further, part-time employees are entitled to 90 days’ notice and severance just like full-time employees.
- Expanded Statewide Definition of “Establishment”: An “establishment” “may be a single location or a group of locations, including any facilities located in [the state of New Jersey].” The prior definition of “establishment” was limited to “a single location or a group of contiguous locations, including groups of facilities which form an office or industrial park or separate facilities just across the street from each other.” This appears to require an employer to aggregate all locations in New Jersey to determine if the 50-employee threshold is met.
So that’s the bad news for New Jersey employers. The good news is that the New Jersey Legislature and governor have just provided New Jersey employers some COVID-19 relief. Under Senate bill 2353, which Governor Phil Murphy signed into law on April 14, 2020, the NJWARN law has been further amended as follows:
- Effective Date of NJWARN Law Amendments Delayed: The effective date of the amendments described above are delayed from July 19, 2020, to 90 days after the governor’s stay-at-home executive order is terminated. This means that events that trigger the NJWARN law will not be subject to the tougher amended state WARN law until a to-be-determined date after July 19, 2020.
- Mass Layoffs due to COVID-19 Are Not Covered by the NJWARN law: The definition of “mass layoff” has been amended to exclude layoffs that occur due to a “national emergency.” This means layoffs due to national emergencies, including the COVID-19 crisis, do not trigger the NJWARN law. Before this new amendment, the “national emergency” exception only applied to a “termination of operations.” Further, this change is effective retroactive to March 9, 2020, so that COVID-19 layoffs that occurred on and after that date are excluded from the definition of “mass layoff.”
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.
