New York State WARN Act
The federal WARN Act, officially known as the Worker Adjustment and Retraining Notification Act of 1988, mandates that qualified employers give a 60-day notice in certain situations of mass layoffs, plant closings, and other significant employment losses. This lead time aims to help employees and their communities better prepare for the impact of these events.
Several states, including New York, have implemented laws commonly called mini WARN Acts, which provide greater protection than the federal WARN Act.
Here we’ll take a closer look at the New York State WARN Act (NYS WARN Act) and how it differs from the federal WARN Act.
What is the New York State WARN Act?
The NYS WARN Act was first established on August 4, 2008, and took effect November 2, 2008. It has been amended since then, most recently in June of 2023. As with the federal WARN Act, this advance notice period provides employees with time to transition, look for new employment, and enter workforce training programs with assistance from the Department of Labor and Local Workforce Development Boards.
The NYS WARN Act is stricter than the federal WARN Act in that it applies to smaller employers and provides a 90-day notice period versus the federal 60-day mandate. In addition, smaller employment-loss events may trigger the NYS WARN Act.
We’ll dive into the specifics of the NYS WARN Act in the next several sections.
Who Must Comply with the New York State WARN Act?
The NYS WARN Act generally applies to private employers with 50 or more full-time employees in the state of New York. More specifically, the NYS WARN Act verbiage describes employers as follows:
Employer means any business enterprise, whether for-profit or not-for-profit, that employs 50 or more employees within New York State, excluding part-time employees, or 50 or more employees including part-time employees within the state that work in aggregate at least 2,000 hours per week.
Employers who meet this description are required to adhere to the NYS WARN Act. Next, we’ll go over the types of employment-loss events that warrant compliance with the NYS WARN Act.
Triggers for WARN Act Compliance
The following employment loss events trigger the NYS WARN Act. Employers should be familiar with these triggers to ensure compliance with any NYS WARN-qualifying workforce adjustments.
Mass Layoffs: This threshold is met when, in a 30-day period, a reduction in force (RIF) results in loss of employment of more than six months for:
at least 25 full-time employees who represent at least 33% of all employees at a single site of employment; or
at least 250 full-time employees;
Plant Closings: This applies when, in a 30-day period, there’s a loss of employment for 25 or more full-time employees due to a permanent or temporary shutdown;
Relocation: This is a situation in which "all or substantially all" operations are moved to a location at least 50 miles from the current location and at least 25 full-time employees suffer loss of employment; and
Reductions in work hours: This is triggered when there is a reduction in work hours of more than 50 percent during each month of any consecutive six-month period for:
at least 25 full-time employees who represent at least 33% of all employees at a single site of employment; or
at least 250 full-time employees.
It’s important to note that, in certain circumstances, one or more locations could meet the definition of a single site of employment when determining whether the NYS WARN Act will be triggered. Examples include contiguous locations, areas in reasonable geographic proximity that share resources, and even remote workers who are “based” at the affected site(s).
Additionally, when evaluating for NYS WARN Act applicability, employment losses are aggregated over a rolling 90-day period. With that in mind, it’s important that employers look backward and forward 90 days when any of these events arise.
Notice Requirements
The NYS WARN Act notice period is 90 days, meaning employees are given more lead time than the federal WARN Act’s 60-day requirement. Some exceptions, described in the next section, may enable an employer to reduce or waive the required notice period.
Employers are required to provide written notice to affected employees. This notice should include:
Whether the change is permanent or temporary
The specific date the changes will take effect (e.g. layoff date, final workday)
Contact information for questions
To ensure employers are protected, they should maintain thorough documentation of the employee notification process.
In addition to employee notifications, employers must provide notice to these entities when the NYS WARN Act is triggered:
Any employee representatives;
The New York State Department of Labor (DOL);
The Local Workforce Development Board (LWDB);
The chief elected official of the unit(s) of local government where the site of employment is located;
The school district or districts where the site of employment is located; and
Each locality that provides police, firefighting, emergency medical or ambulance services, or other emergency services, to the locale where the site of employment is located.
New York State WARN Act Exceptions
In certain circumstances, New York’s 90-day notice period may be reduced. Even if the situation necessitates an exception, the employer is required to provide as much notice as possible.
Exceptions generally fall into one of these categories:
Faltering company: In situations of plant closings only, employers may qualify for a reduced notice period if all of these conditions were true at the time the employer would have been required to provide 90-day notice:
The employer was actively seeking capital or business and can identify the specific actions taken to obtain it; and
There was a reasonable opportunity to obtain the capital or business the employer was seeking; and
If secured, the capital or business would have sufficiently enabled the employer to avoid or postpone the plant closing; and
The employer believed, reasonably and in good faith, that giving notice would have jeopardized the company’s ability to obtain the necessary capital or business.
Unforeseeable business circumstances: To be eligible for this exception, an employer must prove that the qualifying event was caused by business circumstances that were not reasonably foreseeable when the 90-day notice would have been required.
This exception can be met by a sudden, dramatic, and unexpected action or condition outside the employer's control. Examples include termination of a major contract, a strike at a supplier, an unanticipated and dramatic economic downturn, a public health emergency, or a government-mandated closing of a site without prior notice.
Employers must exercise reasonable business judgment when determining whether a business circumstance is foreseeable.
Natural disaster:
Employers must establish that:
The WARN-triggering event resulted from a natural disaster, such as a flood, earthquake, drought, storm, tidal wave, tsunami, or similar effect of nature; and
The employer provided as much notice as practicable under the circumstances, whether in advance or after an employment loss caused by the disaster.
If a plant closing, mass layoff, relocation, or covered reduction in work hours occurs as an indirect result of a natural disaster, the exception doesn’t apply, though the "unforeseeable business circumstance" exception may apply.
Strikes or lockouts: An employer is not required to serve written notice when permanently replacing a person who is deemed to be an “economic striker” under the National Labor Relations Act (29 U.S.C. 151 et seq.). Note that nothing in this rule shall validate or invalidate any judicial or administrative ruling related to hiring permanent replacements for economic strikers under the National Labor Relations Act. This exception only applies to strikes or lockouts that are not intended to evade the requirements of the WARN Act.
When illustrating the need for an exception under the NYS WARN Act, the employer bears the burden of proof.
Consequences of Non-Compliance
So, what happens if a qualified employer fails to adhere to the specifics of the NYS WARN Act?
The New York Commissioner of Labor is entitled to enforce a civil penalty of $500 for each day of the employer’s violation. Additionally, employers who have violated the NYS WARN Act are liable for back pay and benefits to each employee for up to 60 days of the violation. To take it a step further, impacted employees can opt to file a lawsuit, such as a class-action suit, to seek additional compensation.
Financial penalties aside, violation of employment laws like the NYS WARN Act can negatively impact an employer’s reputation.
Conclusion
Private employers in New York with 50 or more full-time employees should understand the ins and outs of the NYS WARN Act to ensure compliance with the mandated 90-day notice period. The NYS WARN Act is triggered in certain situations of employment loss, including mass layoffs, plant closings, relocations, and reductions in work hours.
Failure to comply with the NYS WARN Act can result in significant financial consequences, such as civil penalties enforced by the New York Commissioner of Labor, 60 days of back pay and benefits to each affected employee, as well as potential lawsuits seeking additional financial restitution. Non-compliance can also harm an employer’s reputation, leading to long-lasting consequences.
Qualifying employers should ensure they have a plan in place to assess for NYS WARN Act-triggering events. To learn about Onwards HR’s WARN Act evaluation tools, schedule a demo.
Additional Resources
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