RECENT AMENDMENTS TO THE NEW YORK STATE WORKERS ADJUSTMENT AND RETRAINING NOTIFICATION (WARN) ACT

          The New York State Workers Adjustment and Retraining Notification (WARN) Act, which went into effect on February 1, 2009, requires employers to provide 90 days notice prior to a plant closing, mass layoff or relocation. Notice must be provided to affected employees and their representatives (i.e. their collective bargaining unit), the New York Department of Labor and the local workforce investment board. The State WARN Act applies to private employers with fifty (50) or more workers who lay off at least twenty-five (25) employees, excluding part-time employees. Violations are subject to civil penalties and back wages.

          There are certain exceptions set forth in the statute, such as when the need for notice was not reasonably foreseeable at the time the notice would have been required, or if the closing or layoff was due to a natural disaster.

          On August 31, 2010, the New York State Department of Labor adopted new regulations implementing the state WARN Act. These new regulations included the following changes: (1) directors, officers and shareholders are exempt under the new regulations; (2) the number of employees is counted as of the date the first notice under the Act must be given; (3) when an employer asserts a defense or an exception to the Act’s requirements, the employer must provide documentation in support of the exemption; and (4) paying employees over the period of the violation does not exempt the employer from the civil penalties under the Act.

          In addition, the new regulations change the language of the notice to be given to affected employees, change the procedure for the rescission of notices for mass layoffs, and change the procedure for an administrative review by the Commissioner of the New York State Department of Labor.

          If you have any questions regarding the Act, please feel free to contact The Law Offices of David S. Feather.

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