New York Amends Mini-WARN Law to Require New Notifications

On November 11, 2020, Governor Cuomo signed amendments to the New York WARN law, which requires additional notifications to government officials in the event of a WARN event. Specifically, covered employers must now provide 90-days' notice of a WARN event to:

• The chief elected official of the unit or units of local government and the school district or districts in which the mass layoff, relocation, or employment loss will occur; and
• Each locality which provides police, firefighting, emergency medical or ambulance services, or other emergency services to the site of employment subject to the mass layoff, relocation, or employment loss, as applicable.

Covered employers are still required to provide notice of a WARN event to:

• Affected employees and the representatives of affected employees;
• The New York State Department of Labor; and
• The local workforce investment board.

Please remember the following important definitions when determining whether a particular employment action may constitute a WARN event:

Employment Loss 

The term employment loss means:

• (a) An employment termination, other than a discharge for cause, voluntary departure, or retirement;
• (b) A mass layoff that exceeds six months in duration; or
• (c) A reduction in hours of work of more than 50 percent during each month of any consecutive six-month period, for either:
  
  • (i) At least 25 employees constituting at least 33 percent of the employees at the site (excluding part-time employees); or
  • (ii) At least 250 employees (excluding part-time employees) regardless of whether they comprise 33 percent of the employees at the site (excluding part-time employees).

Mass Layoff 

The term mass layoff means a reduction in workforce that:

• (a) Is not the result of a plant closing; and
• (b) Results in an employment loss at a single site of employment during the applicable 30- or 90-day period for either:
  
  • (i) At least 25 employees (excluding part-time employees) constituting at least 33 percent of the employees at the site (excluding part-time employees); or
  • (ii) At least 250 employees (excluding part-time employees) regardless of whether they comprise 33 percent of the employees at the site.

Part-time Employee

The term part-time employee means an employee who is employed for an average of fewer than 20 hours per week or who has been employed for fewer than six of the 12 months preceding the date on which notice is required.

Plant Closing 

The term plant closing means the permanent or temporary shutdown of a single site of employment or one or more facilities or operating units within a single site of employment if the shutdown results in an employment loss during the applicable 30- or 90-day period at such site for 25 or more employees, excluding any part-time employees.

Moving Forward

Significantly, the amendments do not provide guidance on the required content to be included in the additional notifications. At least with respect to the notice to the chief elected official of the local government, covered employers should comply with the requirements set forth in the federal WARN law for such notices.

Many businesses have been struggling during COVID-19 and have been forced to take significant action to restructure their workforce. In the event a New York business is considering a restructuring of its workforce, it is important that companies work with counsel to ensure that any planned restructuring complies with New York WARN (and its federal counterpart).