On July 9, the New York Department of Labor published another substantially revised Notice of Emergency Adoption and Proposed Rule Making under the state Worker Adjustment and Retraining Notification (NY WARN) Act (12 NYCRR Part 921). As addressed in prior issues of the New Jersey eAuthority, the NY WARN Act differs from the federal WARN Act in many key respects, such as requiring 90 rather than 60 days’ notice, applying to employers with 50 rather than 100 employees, and covering certain job losses of 25 or more employees, rather than 50 or more employees. This new, revised rulemaking supersedes and replaces the former rules that were filed in February 2010 and readopted in May 2010. The new rules are effective immediately.
Among the changes or new provisions in the new Emergency Regulations include:
- Revisions to the required language to be included in WARN notices to be provided to affected employees and the representatives of the affected employees;
- A new requirement that the employer provide a “rescission notice” to affected employees if after WARN notice has been given an employer determines that it will continue operations and the announced plant closing, mass layoff, relocation or covered reduction in hours will not occur, with detailed requirements as to what such a notice must contain;
- Clarification that the definition of “affected employee” excludes an officer, director or shareholder, and that the point in time at which the number of employees is to be measured for the purpose of establishing coverage under the Act is the date the first notice is required to be given;
- Clarification that an employer that asserts a defense in mitigation or exemption from the requirements of the Act must provide documentation in support of the claimed exemption;
- Clarification that civil penalties for failing to give notice under the Act still apply to an employer even if the employer pays “employees their regular wages and benefits over the period of the violation (that exceeds three weeks).” The new regulations also slightly revise the required language that must be included in the notice to the employees when such payment is made;
- Deletion of the 25 or 20-day time requirement for the employer to respond to a notice of violation of the Act from the Department of Labor. Instead, new language provides that that the Commissioner cannot issue an order or determination addressing any WARN violations without having first held a hearing in the matter, except if the employer has waived its right to such a hearing pursuant to a settlement agreement with terms acceptable to the Commissioner.
