WARN Act in New York: How To Stay Compliant
August 22, 2018 by Aley Brown
If you are looking to layoff employees in New York, you will need to make sure that you comply with all WARN Act regulations. This will ensure that your employees are treated fairly, and that you are not penalized for your layoff.
To understand how to comply with the WARN Act in New York, we will have to look at three different areas:
- Does my event qualify me to abide by federal WARN Act regulations?
- What federal regulations must I comply with?
- What state regulations must I comply with in New York?
Before we dig into our analysis of all three of these areas, make sure to download our simple WARN Act checklist with the link below:
What qualifies a layoff to have to comply with the WARN Act?
The WARN Act has several regulations that shape who the law should be applied to. It states:
- The WARN Act applies to your organization if you have over 100 full-time employees
- The WARN Act applies to all publicly and privately held companies
- The WARN Act applies to all organizations that are for-profit or not-for-profit
- A WARN notice must be given if there is a plant closing or a mass layoff
So, if you are an organization that has less than 100 full-time employees (FTEs), you do not have to comply with the WARN Act. If you have over 100 full time employees, the WARN Act will apply to you regardless of being public or private, for-profit or not-for-profit.
Those regulations are fairly simple to understand. The last one: “A WARN notice must be given if there is a plant closing or a mass layoff”, is a little bit more complicated because of the ambiguity of a “mass layoff” or “plant closing”.
According to LexisNexis, a plant closing is:
“If one or more facilities or operating units in a given location anticipate a shutdown that will affect more than 50 workers AND last more than 30 days.”
And a mass layoff is:
“If a series of layoffs over a 30 day period will result in the loss of 500 or more employees, WARN Act Notice must be given. Also, if a series of layoffs of more than 50 or less than 500 employees over a 30 day period will result in a loss of 1/3rd of the workforce, WARN notice must be given.”
Now, let’s run through a couple of examples:
1. A manufacturing company in Syracuse, New York has 45 employees. The organization is laying off over half of its employees due to the loss of a business contract.
Since the company has less than 100 employees, it does not have to give a WARN notice.
2. A non-profit organization with over 500 employees will be closing down an office in Sacramento, resulting in 134 employees being permanently laid off.
Since the company has more than 100 employees, and the facility that is closing will affect more than 50 employees for more than 30 days, giving a WARN notice is required.
Makes sense, right?
How To Comply With Federal WARN Act Regulations
To comply with the WARN Act, you will need to let your affected employees know 60 days in advance of their last day with the organization. This can be done through several different delivery methods, as long as it is given in writing.
The United States Department of Labor states that any reasonable method of delivery is applicable. However, according to the United States Department of Labor:
“Use of pre-printed notices that are regularly included in employees’ paychecks or pay envelopes are not acceptable and do not meet the WARN Act requirements.”
This means that if your organization regularly gives out notices about the workplace with your paychecks, providing a WARN notice this way isn’t sufficient. This is because your employees might not notice the notice since they are regularly given notices through this delivery method.
When creating your WARN notice to be given to employees, make sure to include the following items:
- Notify notice receivers of the upcoming reduction in force
- Explain whether this layoff will be permanent or if the workers can expect to be called to work again
- A time-frame of when layoffs will occur and when their position will be affected
- Your organization’s policy on bumping rights
- Severance benefits that your organization will provide
- Who the employees should contact for further information at your organization (usually an HR representative)
To comply with the WARN Act, your organization must also provide a notice to your government about your reduction event. Similar to the notice given to employees, this notice must be given 60 days in advance.
According to the US Department of Labor, “the employer must also provide notice to the State dislocated worker unit and to the chief elected official of the unit of local government in which the employment site is located.”
New York WARN Act Regulations
As you already know, there are federal regulations resulting from the WARN Act that all states must abide by.
But, some states also have more stringent regulations specifically for the companies located in their state. (And also for employees working in the state – think of telecommuters).
New York, along with several others states, are among those that have more demanding regulations that companies must follow.
There are five areas where the New York WARN Act varies from the federal regulations:
- Minimum Number of Employees
- Minimum Number of Layoffs if Plant is Closing
- Minimum Number of Layoffs if it is a Mass Layoff
- Advanced Notice Required
- Notice Required If Relocating
All of these areas are more stringent than the Federal WARN Act, so if you are going to lay off someone in New York, you should be prepared to face different rules and regulations than if you were laying off in a different state.
Now let’s dig into all five.
Minimum Number of Employees: The federal WARN Act states that their regulations only apply to employers who have over 100 employees, and then meet the other qualifications.
The New York WARN Act requires that organizations with 50 or more employees comply.
Minimum Number of Layoffs if Plant is Closing: The federal WARN Act requires that organizations comply if over 50 employees are laid off within a 30 day period when a plant is closing.
The New York WARN Act requires that organizations comply if they layoff over 25 employees within a 30 day period when a plant is closing.
Minimum Number of Layoffs if it is a Mass Layoff: The federal WARN Act requires that organization comply if the layoff more than 33% of their employees, and at least 50 full-time employees, or more than 500 employees full-time employees, in a 30 day period.
The New York WARN Act requires that organizations comply with the regulation if more than 25% of their employees are laid off, and at least 25 full-time employees, or more than 250 employees, during a 30 day periods.
Advanced Notice Required: The federal WARN Act requires that you provide notice 60 days in advance.
New York WARN Act regulations require that you provide 90 days notice.
Notice Required If Relocating: The federal WARN Act regulations do not require organizations to provide notice for a relocation if the relocation is separate from, and doesn’t constitute, a mass layoff or plant closing.
Under the New York WARN Act regulations, organizations must give notice in the event of a relocation, if the relocation removes all (or substantially all) of the industrial or commercial operations of an organization to a location over 50 miles or more away.
Also, according to New York regulations organizations must give notice to their employees, any employee representatives (for example: unions), the New York Department of Labor, and the local Workforce Investment boards.
You can contact the New York Department of Labor with your WARN notice with the following contact information:
Richard Grossi
New York State Department of Labor
Building 12, Room 425
State Office Campus
Albany, New York 12240
Email: WARN@labor.ny.gov
And you can also contact Local Workforce Investment Board with the information below:
NYC Workforce Development Board
c/o Reynold Graham, WDB Coordinator
NYC Office of Workforce Development
253 Broadway, 8th Floor
New York, NY 10007
Always consult with your corporate counsel before executing a layoff event, and when researching laws regarding layoffs in your location.
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