Update applicable to:

All employers operating in New York

What happened?

The New York State Department of Labor has published amended WARN regulations that provide guidance on a number of topics, including treatment of remote workers, applicability of exemptions, pay in lieu of notice, calculating back pay, and new requirements for notices.

What are the details?

The New York State Department of Labor (NYS DOL) has published new regulations addressing the post-pandemic employment climate. The regulations clarify that remote employees based at an employment site count toward determining employer coverage. They also state that a public health emergency, like a pandemic, may qualify for the unforeseeable business circumstances exception, and define what constitutes a temporary layoff.

Key changes include:

1. Exceptions: The regulations outline exceptions to the requirement of providing 90 days’ notice for a mass layoff or plant closure. Employers must receive a determination from the Commissioner that they meet the elements of the exception.
2. Faltering Company Exception: The faltering company exception now applies only to plant closings, not mass layoffs.
3. New Notice Requirements: Notices must include additional information, such as the number of full-time and part-time employees in the state and at the affected site.
4. Pay in Lieu of Notice: Employers can offset their WARN (Worker Adjustment and Retraining Notification) liability by paying wages and benefits for the period of the WARN violation. The amendments introduce a provision allowing employers to offset liability if they have an employment agreement or company policy providing for a notice period.
5. Calculating Back Pay: The regulations provide guidance on calculating back pay for hourly and non-hourly employees when notice is not provided and employees are owed 60 days of back wages under the statute.

For more information, please see the links below:

Updated Regulations

Law Firm Summaries: Article, 1, Article 2, Article 3

NYS WARN Act

Official WARN DOL Page

What do employers need to do?

The Littler law firm specifies that the added complexity and potential for liability imposed by the amended regulations make compliance even more difficult. Given the scope and breadth of information that must be provided to the Commission of Labor, notices (and submissions to justify exemptions, if applicable) will take longer to draft and employers must prepare well more than 90 days before a WARN-triggering layoff or closure in New York. As always, employers should consult counsel to help with questions about these amendments and NY WARN more generally.  

This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.