NY Amends its WARN Act Regulations, Adding Further Compliance Complexity for Struggling Businesses

On June 21, 2023, the New York Department of Labor (NYDOL) issued amendments to the New York State Worker Adjustment and Retraining Notification (NY WARN) Act regulations, which took effect on that date. NY WARNS requires employers with 50 or more full-time employees in New York State to provide 90 days' notice of plant closings and mass layoffs.

Under NY WARN notice generally applies when a covered employer (1) closes a facility that results in a job loss for 25 or more employees; (2) lays off 25 or more full-time employees (if those employees make up at least 33% of the workface at a site); or (3) lays off 250 or more full-time employees (regardless of the percentage of the workforce those employees represent).

The amendments to NY WARN made a number of significant changes that employers will need to comply with if NY WARN notice is required. Those changes include:

  • Employer coverage: The definition of a covered employer was expanded to count employees who work remotely but are “based at the employment site.” This change recognizes that many employees work remotely after the pandemic and potentially means that more employers will be required to provide NY WARN notice.

  • Changes to notice requirements: The amendments made a number of changes to the notice requirements, including:

    • The notice to the New York Commission of Labor must include additional information that not was previously required (and which is not required by federal law). Going forward the notice to the Commissioner must be submitted through a new WARN Portal on the NY DOL website.

    • The notice to affected employees must now include information on severance packages or financial incentives being offered to employees who continue to work through the effective date of the layoff of closing.

  • Clarification to Sale of Business Provisions: The amendments clarify that in connection with the sale of a business, the sellers is not obligated to provide NY WARN notices if the transfer of employees is a condition of the purchase agreement.

  • Changes to NY WARN Exemptions: NY WARN contains several exemptions that, if applicable, permit an employer to provide less than 90 days’ notice to affected employees. The amended regulations make several changes to the exemptions, including:

    • Adding public health emergencies, (such as a pandemic) and terrorist attacks to the list of possible exemptions.

    • Requiring employers to submit a request to the Commissioner of Labor invoking an exemption.

The amendments add further complexity to what was already a complicated compliance process. Any business with 50 or more employees in New York that is struggling and contemplating shutting down or conducting a mass layoff should consult with knowledgeable counsel as quickly as possible to ensure compliance with NY WARN’s notice requirements.

If you have questions about your business’ employment practices or policies, please schedule a complimentary consultation with us through our online scheduling system.

Information contained in this blog is provided for informational purposes and does not constitute legal advice or opinion. You should consult with an attorney regarding the specifics of your matter or legal issue.

Employment LawMichael Moreatermination, mass layoff, plant closing, WARN, notices