On November 11, 2020, Governor Andrew Cuomo signed into law Assembly Bill A10674a. The legislation, which took effect immediately, amended the New York Worker Adjustment and Retraining Notification (WARN) Act by substantially expanding the list of governmental entities that must receive advance notice of a WARN-triggering event.
Under the New York WARN Act, covered employers (those employing 50 or more countable employees within the state) generally are required to give 90 days' advance notice of certain qualifying mass layoffs, plant closings, reductions in hours, and relocations. NY WARN also has a number of unique provisions regarding the content of notices, who must receive notices, the company official who must sign government notices, and the requirement of an original signature on one government notice.
Under prior law, NY WARN notice was due to the State Department of Labor, each affected employee, each union representing affected employees, and the local Workforce Investment Board.1 In addition, federal WARN, when triggered, adds the requirement of notice to the chief elected official of the unit of local government where the qualifying WARN event takes place and to which the employer paid the highest taxes in the preceding year.2 As amended, New York WARN now requires that, in addition to these recipients, WARN notice be sent to: (1) the chief elected official of the unit or units of local government and the school district or districts in which the WARN event will occur; and (2) each locality that provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment where the WARN event is occurring. According to the bill's legislative sponsors, the purpose of this change is to advise these local government recipients of the potential loss of tax revenue and the possibility that health and safety dangers may exist on abandoned properties.3
The amendment does not specify the content of these new notices. Until that issue is clarified by revised New York regulations, employers should, at a minimum, provide the content required under federal WARN for notices to local governmental entities, because the New York statute states generally that New York WARN notices must include the information required in a federal WARN notice. Employers should also consider including the additional content required by existing New York regulations for WARN notices given to the local Workforce Investment Board.
While the amendment specifically states it is effective immediately, it does not expressly address whether these additional notices are required for WARN-triggering events that occur after the law becomes effective but as to which WARN notice was already issued before the amendment became law. Revised regulations might also address this issue.
WARN Act compliance can be complicated, and if done incorrectly, costly. This amendment to New York WARN makes New York WARN Act compliance more complicated. Employers contemplating a WARN-triggering event should consult counsel to discuss all aspects of WARN Act compliance, including the required recipients of notice and the content of those notices.
1 N.Y. Lab. Law § 860-b; N.Y. Comp. Codes R. & Regs. tit. 12, § 921-2.2.
2 20 CFR §§ 639.6(d) and 639.3(g).
3 See N.Y.S. Assembly A10674 Summary, available at: https://assembly.state.ny.us/leg/?default_fld=&leg_video=&bn=A10674&term=2019&Summary=Y&Actions=Y&Memo=Y&Text=Y (last visited Nov. 11, 2020). Note that due to New York's arcane government structure, this could involve a multiplicity of government notices. For example, an employer in the Village of Manhasset would have to provide notice to the Village of Manhasset, the Town of North Hempstead, the County of Nassau, the Manhasset-Lakeville Fire Department, as well as the Manhasset School District.
Originally Published by Littler Mendelson, November 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.