Effective February 1, 2009, New York employers with 50 or more employees are required to provide advance notice to employees in the event of a mass layoff, plant closing or relocation. The recently enacted New York Worker Adjustment and Retraining Notification Act ("NY WARN") imposes significantly increased notification obligations, as compared to the federal Worker Adjustment and Retraining Notification Act ("Federal WARN").

The new legislation requires all private employers with 50 or more employees, excluding part-time employees, to provide 90 days advance written notice of a "mass layoff", "relocation" or "employment loss". This is substantially broader than the Federal WARN which covers employers with 100 or more employees and only requires 60 days advance notice.

"Mass layoff" is defined as an employment loss within a 30 day period at a single employment site of at least 250 full-time employees (as compared to 500 under the Federal WARN) or the layoff of at least 25 full-time employees which constitutes 33% of the workforce (as compared to 50 full-time employees under the Federal WARN). The threshold requirements do not apply to the layoff of part-time employees. The new legislation defines a "part-time employee" as one who works an average of fewer than 20 hours per week or who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required.

"Relocation" is defined as the removal of substantially all of the operations to a location at least 50 miles away, regardless of whether there is any employment loss. In contrast, relocations are not covered under the Federal WARN.

The statute does not specifically require notice for a "plant closing" although plant closing is expressly defined as the shutdown of a single site of employment if it results in an employment loss of 25 or more full-time employees (as compared to 50 employees under the Federal WARN). This appears to be an oversight since other sections of the legislation indicate that a plant closing may also trigger the notice provision.

Employers must provide notice to affected employees and their representatives, the New York Department of Labor, and the local workforce investment board for the locality in which the mass layoff, relocation, plant closing or employment loss will occur.

An employer is not required to comply with the notice provisions of this new legislation if (1) the employer was actively seeking business or capital to avoid the termination or relocation, and giving such notice would have precluded the employer from obtaining such business or capital; (2) the need for notice was not reasonably foreseeable at the time notice was required; (3) the closing was of a temporary facility or the mass layoff was due to the completion of a project if the employees were hired with an understanding of the duration of their employment; (4) the plant closing or mass layoff is due to a natural disaster; or (5) the closing or mass layoff constitutes a strike or lockout.

An employer that fails to provide the required notice must provide back pay and the cost of benefits for each employee who lost employment and was entitled to notice for a period of up to 60 calendar days (as opposed to work days under the Federal WARN). The employer is also subject to a civil penalty imposed by the NY Department of Labor of $500 per day. Employees may enforce their rights under the NY WARN through the NY Department of Labor or by filing a civil action against their employer.

Employers must carefully plan work force reductions and organizational restructurings. The requirements of NY WARN are strict, more expansive than the Federal WARN in several significant ways, and leave some gaps in definitions that still need to be determined. In the event your company is contemplating layoffs, relocation or plant closing, the attorneys at Nukk-Freeman and Cerra, PC are available to guide employers through this difficult process.