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As of June 21, 2023, New York implemented new amendments to the New York State Worker Adjustment and Retraining Notification (“WARN”) Act. Many states have WARN Acts, which mandate certain notices (and, sometimes, compensation) when covered employers have mass layoffs or closures. New York’s latest amendments make compliance with the WARN Act more difficult for employers.

Employer Coverage

Under the amended regulations, remote employees are now considered employees “based at the employment site.” This is important because the definition of a covered employer relies on how many employees work at a single site. With the expanded definition, more employers should be covered.

New Notice Content Requirements

In addition to an already long list of notice content requirements, the amended regulations add that the notice must also include:

1. business addresses and email addresses for the employer’s and employees’ agents;
2. the personal telephone numbers, personal email addresses (if known), work locations, part-time/full-time status, method of payment (i.e., hourly, salary, or commission basis), and union affiliation for each affected employee;
3. the total number of full-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site;
4. the total number of part-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site; and
5. other relevant information such as financial offerings to employees and the estimated duration of the layoff.

NY WARN Exceptions

Built into the WARN Act are exceptions that allow an employer (in some cases) to provide employees with less than the otherwise required 90-day notice. These exceptions underwent small changes:

• The faltering company exception now only applies to plant closings;
• The unforeseeable business circumstances exception was amended to include public health emergencies, such as a pandemic, that result in a sudden and unexpected closure, and a terrorist attack directly affecting operations.

However, the amended WARN Act sets out a new procedure for benefiting from these exceptions. The amended regulations require employers submit a request to the Commissioner to be considered eligible for an exception. The request must be submitted within 10 business days of the required WARN notice.

In the request, employers must provide documentation to demonstrate how an exception applies to their company. The request should include a statement explaining the circumstances surrounding the layoff, closure, or hours reduction and an explanation of why a shorter notice period is required.

After submitting the request, the Commissioner will investigate and determine whether the employer qualifies for the exception. However, if the employer fails to establish the elements of an exception, the Commissioner can hold the employer liable for violating the WARN Act.

Conclusion

WARN Act compliance can be very difficult. Many states have their own rules, and the federal government also has its own WARN Act requirements. If your company is planning a mass layoff, closure, or hours reduction, you should consult an attorney. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws, including WARN Act compliance.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560