On November 11, 2020, Governor Cuomo signed an amendment (the “Amendment”) to the New York State Worker Adjustment and Retraining Notification Act (“NY-WARN Act”). The Amendment significantly expands the governmental entities that an employer must notify concerning a NY-WARN triggering event, such as a mass layoff, plant closing, reduction in hours, or relocation.
Prior to the Amendment, covered employers were required to provide 90-days’ advance notice of a triggering event to:
- Affected employees and the union representatives of affected employees;
- The New York State Department of Labor; and
- The local workforce investment board.
Following this Amendment, employers must also provide 90-days’ advance notice 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; and
- Each locality which provides police, firefighting, emergency medical or ambulance services, or other emergency services to the site of employment subject to the mass layoff, relocation, or employment loss, as applicable.
The Amendment does not specify the information that must be included in these new notice obligations. Until this ambiguity is clarified, employers should, at a minimum, provide the content required under federal WARN for notices to local government entities because the NY-WARN Act is generally coextensive with the federal WARN requirements.
In light of COVID-19, many businesses have been forced to take significant actions to restructure their workforce. In the event a business in New York is considering plans to restructure its workforce, it is important that employers work with experienced counsel to ensure that these measures are implemented in compliance with federal WARN and the NY-WARN Act. Detailed information concerning WARN and NY-WARN requirements can be found in Chapter 5 of the Employer’s Guide to COVID-19 and Emerging Workplace Issues (Castle Publications, 2020).
Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace. Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.
As you are aware, things are changing quickly and there are no clear-cut authorities or bright line rules. This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.
*Jamie Moelis is a law clerk in the firm’s New York office.