HR Alert: New WARN Act Requirements

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The NYS WARN Act stands for Worker Adjustment and Retraining Notification Act, and it requires certain businesses to provide early warnings of closures and layoffs depending on their size.

The law requires that businesses employing 50 or more full-time employees to provide 90 days’ notice of employment losses to affected employees and to the government.

An employment loss can fall into three categories:
1.  the termination of employment without cause, voluntary departure, or retirement;
2.  a mass layoff exceeding six months; or
3.  a reduction in hours of work of more than 50 percent during each month of any consecutive six-month period.

Recent updates to the WARN Act regulations provide clarifications. They mirror the proposed regulations issued by the NYS Department of Labor in March 2023.

These updates include:

• Remote employees are included in determining employer coverage such that full-time remote employees working at an affected site are now included in determining whether an employer meets the 50-employee threshold.

• A selling employer is relieved of liability in limited circumstances. If the transfer of employees is a condition of a purchase agreement, the selling employer has no liability if the purchasing employer fails to provide employees with proper notice.

• Notice is required for additional entities to include the chief elected official of the unit of local government (usually a mayor or town executive); the school district; and the locality that provides police, firefighting, emergency medical or ambulance services, or other emergency services.

• More information must be provided in the notice to the NYS Commissioner of Labor to now include the legal business name, business addresses, email addresses for the employer’s and employees’ agents, and the personal phone number, email address, job title, work location, status, method of payment, and union affiliation of every employee to be laid off.

• Likewise, additional information must be provided to employees to now include the complete legal business name, address of the affected employment site, the separation date, business address and email address of the employer’s agent, severance package information, financial incentives if the employee decides to work until the effective date of the planned action, available dislocated worker assistance, and estimated duration if the planned action is temporary.

• Expansion to unforeseen business circumstances. The list of unforeseeable business circumstances warranting an exception to the WARN Act’s notice period now includes “a public health emergency” such as a pandemic that results in a sudden and unexpected closure and a terrorist attack directly affecting operations.

• Determining applicability of exceptions to the WARN Act’s notice requirement. A request must be submitted to the Commissioner of Labor within ten business days of the required notice being provided to the Commissioner and must have documentation demonstrating the applicability of an exception. Additionally, an affidavit stating that the documentation is “true and correct” is required

At The Coppola Firm our team of experts are ready to guide your company through these ever-changing rules and regulations. If a layoff is on the horizon or may be anticipated in the future and you think your business might qualify for an exception, don’t hesitate to contact us. Please reach out using 716.839.9700 or with any questions.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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