New York State Department of Labor DOL Updates its NYS WARN Act Regulations

On June 21, 2023, the New York State Department of Labor (“NYSDOL”) issued updated regulations to the New York State Worker Adjustment and Retraining Notification Act (“NYS WARN Act”), which requires employers with 50 or more employees to provide 90 days’ notice of mass layoffs, plant closings and other specified employment losses.  According to the NSYDOL website, these new regulations are intended to “address the post-pandemic employment climate” and “simplif[y] language to ensure businesses better understand their obligations.”  The changes include, among other things:

• Remote Workers. Individuals who work remotely but are based at the employment site, other than part-time employees, are counted toward the threshold of determining a covered employer.  Under the regulations, part-time employee means any employee who is employed for an average of fewer than twenty hours per week or who has been employed for fewer than six of the twelve months preceding the date on which notice is required.
• Sale of a Business. In the case of a sale of all or part of a business, the regulations continue to provide that a promise of employment by the buyer to an employee does not relieve the seller of the obligation to provide notice, while clarifying that the term “buyer” refers to the “purchasing employer” and the term “seller” refers to the “selling employer.”  The revised regulations also clarify that the selling employer is relieved of liability in the event that the purchasing employer agrees to the transfer of employees as a good faith condition of the purchase agreement and fails to uphold that condition. In that case, the purchasing employer is obligated to provide notice.
• Notice to Government Officials/Entities. In addition to affected employees, their representatives, the New York State Commissioner of Labor, and the Local Workforce Investment Board, notice of the covered employment loss must be provided to the chief elected official of the unit or units of local government, the school district or districts, and any locality that provides police, firefighting or other emergency services to the locale where the site of employment is located.
• Contents of Notice.

- The notice must now set forth additional contact information, including the complete legal business name, business address, and email addresses for the business, the employer’s agent, the employees’ representatives, and the affected employees.

- Notice to the Commissioner must include additional information stating whether the affected employees are paid on an hourly, salary or commission basis, their part-time or full-time status, and the number of full-time and part-time employees, and affected employees, in New York State and at each affected site.

- Notice provided to affected employees must include “[a]ny additional information known at the time of the notice and relevant to the separation,” including information on severance packages or financial incentives, available dislocated worker assistance, and the estimated duration if the planned action is expected to be temporary.

• Exceptions to Notice.

- The updated regulations now include a “public health emergency, including but not limited to a pandemic” resulting in a sudden and unexpected closure, and a terrorist attack directly affecting operations, in addition to the other situations already listed in the regulations, as unforeseeable business circumstances warranting an exception to the notice requirement.

- An employer seeking a reduction or excusal from the NYS WARN Act notice requirement (for any reason) must obtain a determination by the Commissioner that it qualifies for such reduction or excusal. The employer must submit a request to the Commissioner, in addition to the required notice to be provided.  This request must be submitted within ten business days of the date the notice is required to be provided.  The updated regulations provide examples of documentation demonstrating the applicability of an exception. While the employer has always borne the burden of proof to show that it met the requirements for an exception, prior to the amendment there was no requirement to submit such request and documentation to the Commissioner for a determination.

- The Commissioner will conduct an investigation and notify the employer of its determination of the employer’s eligibility for an exception. If the Commissioner finds that the employer failed to establish the elements of any exception, the Commissioner will continue the enforcement action for determining the employer’s liability for violation of the NYS WARN Act.

Employers should review these regulations, which became effectively immediately, prior to taking any employment action that may trigger the NYS WARN Act. Crowell & Moring attorneys are available to consult on any questions related to these regulations or the employment actions impacted by those regulations.