Employment Furlough and Layoffs During Covid-19 and the Expansion of NYS WARN

The Covid-19 pandemic has been plaguing the world for nearly a year creating a domino effect in terms of the residual effects it has had on people’s lives.  One of the resulting complications is the massive number of furloughs and layoffs that have occurred because employers are unable to pay wages due to forced shutdowns and reduced business. 

For companies that have been forced to furlough or completely lay off employees,

it is important to note that the Federal Worker Adjustment and Retraining Notification Act (“WARN Act”), requires employers to provide employees with 60 days advance notice of termination.  The WARN Act also stipulates that plants are required to give a notice of closing if the subsequent upheaval causes a loss of the jobs of 50 or more employees.  In the event that such economic upheaval is impending, the employer must provide notice within a 30-day period.  The WARN Act defines a mass layoff as a reduction in force that will result in a loss of at least 1/3 of the jobs at a single site, with a minimum of 50 lost jobs, or at least 500 total lost jobs.  This required notice is known as the WARN notice. 

New York has its own version of the WARN Act which provides similar guidelines for how private employers are required to warn employees of a potential shutdown or plant closing.  The NY WARN Act requires employers with at least 50 full-time employees who plan to conduct a closing affecting 25 or more employees; mass layoff involving 25 or more full-time employees (if the 25 or more employees make up at least 33% of all the employees at the site); or mass layoffs involving 250 or more full-time employees, to provide 90 days’ written notice to employees as well as various government entities of said triggering employment action. 

Businesses that do not provide such notice may be required to pay back wages and benefits to workers in addition to civil penalties.

Additionally, employers are required to give the same 90-day advance notice of the triggering event to the New York State Department of Labor and the local workforce investment board. 

On November 11, 2020 Governor Cuomo signed into law an expansion of NYS WARN which now expands the government entities that must receive notice. The expansion requires that the 90-day advance notice be given to the chief elected official of the unit or units of local government and the school district or districts in which the mass layoff, relocation, or employment loss will occur.  The expansion also requires 90 days of notice to be given to each locality which provides police, firefighter, emergency medical or ambulance services, or other emergency services to the site of employment subject to mass layoff, relocation, or employment loss as applicable. 

As the expansion in the NYS WARN Act now requires adoption by municipalities when it is clear that it will have to furlough its employees, it is important that all employers have an understanding of the law and what is required in order to remain in compliance.  If you or your H.R. department have any questions on the implementation of the updated NYS WARN act and what specific provisions your business may be required to comply with, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at caugello@augellolaw.com.

Thank you to Joel Thomas, JD for his assistance with this post. 

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