Since 1989, the federal Worker Adjustment and Retraining Notification (“WARN”) Act has required covered employers to give written notice in advance of certain workforce reductions affecting at least 50 employees. Twenty years later, a New York law expanded the coverage to reductions potentially affecting as few as 25 employees.
If your business is planning or considering downsizing at these levels, then a review of the WARN Act needs to be undertaken early in the process.
When Are WARN Notices Required?
The federal WARN Act requires employers with 100 or more employees to provide 60 days’ advance written notice in the event of a “mass layoff” or “plant closing,” as defined in the law. New York State’s WARN Act covers employers with as few as 50 total employees, and requires 90 days’ notice. Some other states also have mini-WARN laws, not addressed here, that may differ and should be reviewed with respect to reductions in force in those states.
The “employer” for WARN purposes can extend across a “business enterprise” to encompass more than one legal entity. So, you need to consider total employees across affiliated companies before concluding that you are not a covered employer based on the size of your workforce.
Covered employers may need to give WARN notices (to employees, their unions where applicable, and certain government officials) in the following circumstances:
“Plant Closing”: where an employment site (or one or more facilities or operating units within an employment site) will be shut down, and the shutdown will result in an “employment loss” for 50 (25 in New York) or more employees during any 30-day period.
“Mass Layoff”: where there is to be a mass layoff which does not result from a plant closing, but which will result in an employment loss at the employment site during any 30-day period for: (a) 500 (250 in New York) or more employees, or (b) for 50-499 (25-249 in New York) employees if they make up at least 33% of the employer's active workforce.
“Relocation” (New York WARN): where all or substantially all of the industrial or commercial operations of an employer will be removed to a different location fifty miles or more away from the original site of operation and 25 or more employees suffer an employment loss.
Despite the reference to a 30-day period in the definitions of plant closing and mass layoff above, there are additional provisions that allow for the aggregating of employment losses for up to a 90-day period in some cases in determining whether WARN notices must be provided.
The New York WARN Act also specifically requires notice for certain “covered reductions in hours,” but any such covered reduction would seemingly also qualify as a “mass layoff” based on the definition of “employment loss.”
Generally speaking, “employment loss” for WARN purposes includes: (a) employment terminations other than a discharge for cause, voluntary departure, or retirement; (b) layoffs exceeding 6 months; and (c) a reduction in an employee's hours of work of more than 50% in each month of any 6-month period.
When May Notice Not Be Required Under the WARN Acts?
Before you send out WARN notices, here are some potential exceptions to consider:
“Part-time employees” don’t count. For WARN purposes, this specifically means employees who have worked less than 6 months in the last 12 months and employees who work an average of less than 20 hours a week. (But part-time employees are entitled to receive notice where otherwise required to be issued.)
Independent contractors don’t count. But make sure that the individuals who are classified as independent contractors truly are independent contractors rather than employees.
New York’s Shared Work Program may provide an exception to New York WARN obligations based on reductions in hours. Where applicable, the Shared Work Program permits an employer to reduce the hours of work of its employees, up to a maximum of 60%, with employees supplementing lost income with partial unemployment insurance benefits.
No notice is required if the employer offers to transfer employees to a different site of employment within a reasonable commuting distance.
No notice is required if the plant closing is of a temporary facility or if the plant closing or mass layoff results from the completion of a particular project or undertaking and the affected employees were hired with the understanding that their employment was limited to the duration of the facility or project or undertaking. In some cases, seasonal employment may also qualify for an exception from the notice requirement.
Notice might not be required where employees retain employment with another company in the context of the sale of a business.
“Faltering companies” may get some relief from the full notice period. This applies only to plant closings and is limited to situations where a company has sought new capital or business in order to stay open and giving notice would ruin the opportunity to get the new capital or business.
An “unforeseeable business circumstances” exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required. The employer still must give as much notice as possible.
Full notice is not required where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought, or storm.
Employers do not have to give notice when permanently replacing an economic striker as defined under the National Labor Relations Act.
All of the above should be considered narrow exceptions. Employers should only rely on them upon consultation with counsel experienced in applying the WARN Acts.
What Happens If WARN Notices Aren't Issued?
If an employer should have given notice under WARN and does not, then it may be held liable for damages to each employee who should have received notice for up to 60 days’ pay and benefits, plus civil penalties and attorneys’ fees.
Is It Too Late To Comply With WARN?
If your company is contemplating downsizing in numbers that could trigger WARN issues, you should immediately consider whether or not notices should be issued. Depending on timing and business considerations, it may be better to issue late notices rather than no notices. In other cases, it might be advisable to delay implementing the reduction in force to permit full notice to be provided. And sometimes you might even determine that notices aren’t required under the WARN Acts in the first place.
If you find your company in a position to navigate these complex issues, please contact your labor and employment counsel at Bond for further guidance.
In a case dealing with the after-effects following the bankruptcy of clothing retailer Steve & Barry’s Industries, Inc., the Court of Appeals for the Second Circuit (which has jurisdiction over New York employers) has ruled, in Giuppone v. BH S&B Holdings LLC, on the analysis to be applied in determining whether nominally separate entities should be considered a single employer for purposes of coverage under the Worker Adjustment and Retraining Notification Act ("WARN").
The federal and state WARN laws generally require that employers provide employees with notice of employment losses due to a plant closing or mass layoff. In Guippone, the Court resolved an open question in the Circuit concerning the test to be applied when analyzing the single employer issue. The single employer issue is particularly important in the WARN context because an entity that is theoretically not the “employer” of the discharged employees – for example, an investment entity or corporate parent – may nevertheless become liable under WARN if a court determines that the “employer” and the related entity are a “single employer” for WARN purposes. The “single employer” theory also may entangle a larger, related entity, where the employer of record is too small for purposes of coverage under WARN.
In Guippone, the Court concluded that a five-factor test set forth in the regulations of the United States Department of Labor (“USDOL”) should be applied when analyzing the issue. Those five factors are: (1) common ownership; (2) common directors and/or officers; (3) de facto exercise of control; (4) unity of personnel policies emanating from a common source; and (5) the dependency of operations. The Court held that the five factors are non-exclusive, with no one factor controlling and the absence of any factor not dispositive on the question of WARN liability.
The Court largely affirmed the lower court’s ruling dismissing the case against certain related entities, based upon application of the USDOL factors. However, it concluded that a question of fact existed with regard to the de facto exercise of control factor as applied to another related entity. In particular, the Court focused on whether the evidence indicated that a related entity “was the decision-maker responsible for the employment practice giving rise to the litigation.” Among the evidence cited by the Court was:
the absence of a board of directors at the subsidiary;
selection by the parent of the subsidiary’s management team;
negotiation of the subsidiary’s financing by the parent’s board of directors; and
a resolution passed by the parent’s board of directors “authorizing” the subsidiary “to effectuate the reduction in force.”
An employer considering any type of reduction in force should properly assess its potential obligations under the federal and state WARN statutes before implementing the reduction in force. Furthermore, when assessing those obligations, an employer must consider whether it is a “single employer” along with other related entities to trigger coverage under WARN even if the employer by itself would not otherwise be covered under WARN. Finally, an employer should pay particular attention to the degree of control exercised by a related entity over the reduction in force decision.
As many employers are aware, under the Federal Worker Adjustment and Retraining Notification (“WARN”) Act, employers must provide affected employees with 60 days’ written notice of a plant closing. In Collins v. Gee West Seattle, the Ninth Circuit Court of Appeals had the opportunity to decide whether employees who left their employment after learning that their company was closing “voluntary departed” under WARN, thereby excusing the employer from sending out WARN notices.
In that case, Gee West, a car dealership that employed approximately 150 employees, experienced severe financial losses in July 2007, and decided to sell the company. Despite its efforts, the business was not sold, and on September 26, Gee West announced that it was closing 11 days later, on October 7. After the announcement, employees stopped going to work, and only 30 employees were present the day the plant closed.
The employer argued that it was not required to give WARN notice because at the time of the closing there were only 30 employees who suffered an employment loss -- not 50 as required by WARN. (The statute's 60-day notice requirement applies where the shutdown of a plant results in “an employment loss at the single site of employment during any 30-day period for 50 or more employees”). According to the employer, the other 120 employees had “voluntarily departed” prior to the closing and therefore had not suffered an employment loss. WARN defines an employment loss as a termination of employment for reasons other than, among other things, a voluntary departure.
The Ninth Circuit rejected the employer's argument, finding that “[e]mployees’ departure because of a business closing … is generally not voluntary, but a consequence of the shutdown and must be considered a loss of employment when determining whether a plant closure has occurred.” Therefore, Gee West was required to give 60-day notice to all 150 affected employees who the company reasonably expected would lose their jobs as a result of the closing on October 7.
In light of this case, employers should be aware that even if an employee’s departure after the announcement of a plant closing seems “voluntary,” a court may view it differently, and determine whether WARN applies based on the number of employees at the time of the announcement, not the actual closing.
For example, Section 195 of the New York Labor Law requires an employer to give an employee written notice of the “exact date” of his or her termination, as well as written notice of the “exact date” of the cancellation of the employee’s benefits. Notice must be provided within five “working” days of the date of the termination.
The Section 195 notice should also include information about employee conversion rights under the employer’s group life insurance plan. In New York, every group life insurance contract must include a conversion right for employees in the event that group coverage is terminated. As a result, when group life insurance coverage will end because an employee is terminated, the employer should provide written notice to that employee that he or she may have the option of converting the group coverage to individual coverage. An employer should advise the employee to contact the insurance provider for more information regarding any conversion rights under the policy.
New York employers must also provide written notice of an employee’s right to file a claim for unemployment insurance benefits. The notice must include the employer’s name, address, and registration number. In addition, employers must advise an employee to present the notice to the New York State Unemployment Insurance Division when he or she files a claim for benefits.
Earlier this year, we posted on the New York State Department of Labor’s new regulations governing New York’s WARN Act, the state statute that requires certain employers to provide 90 days notice to employees, their employees’ unions, if any, and to government agencies, before engaging in certain actions which result in losses of employment. In July, the New York DOL issued revised emergency regulations which replace and supersede the existing regulations. The revisions are not extensive. However, a few of the changes may be significant for New York employers contemplating some form of reduction in force or work hours.
First, the new regulations change the definition of the term “affected employee” by stating that it does not include an officer, director, or shareholder. The initial regulation only excluded business partners, and consultants and contract employees who have employment relationships with other employers or who are self-employed.
Only employers with 50 or more employees are covered by New York’s WARN Act. The revised regulations impact coverage determinations by defining the point in time for measuring the number of employees as the date the first notice would be required to be given under the Act.
The revised regulations also make some minor modifications to the required content of the notices which must be provided. More significantly, the revised regulations now apply the notice requirements to employer decisions rescinding a previously issued notice of plant closing, mass layoff, relocation or covered reduction in hours. In other words, when an employer has given notice required by the Act, but then determines that it will not need to engage in the action for which notice was provided, it must use the same notice process to inform affected employees, their unions and the government that it is rescinding its decision.
Finally, the regulations provide that when an employer relies on one of the statutory exceptions, (unforeseeable business circumstances, a natural disaster and the faltering company exception) as a justification for not providing the 90-day notice, it must provide documentation to support the exception.
The revised regulations are still lengthy and complex. Any New York employer contemplating any form of reduction in employment, including a reduction in hours should carefully consider whether the regulations apply and, if so, how it will satisfy the regulatory requirements.
As hopes for a quick economic recovery have sagged, many employers have been left with little choice but to reduce the size of their workforces. In some instances, laid-off employees are being offered severance in exchange for their release of all claims against their employer. Indeed, obtaining such a release is an indispensable component of a well designed severance package. And if a release is properly drafted, it generally does protect the employer from a subsequent lawsuit brought by the departing employee.
Too often though, the details of the release language are an afterthought. Unsuspecting employers, unaware of the applicable legal authorities, recycle old releases on the assumption that a generic release is as effective in a layoff as when a single employee is being discharged. Other employers have at least some awareness that the Older Workers Benefit Protection Act (“OWBPA”) requires additional language in a release in order to obtain a valid waiver of federal age discrimination claims. Yet not all such employers know that OWBPA may impose additional requirements when the release is requested in connection with a layoff.
In the ordinary situation, the requirements of OWBPA are relatively straightforward. As a general matter, the statute provides that, in order to release age discrimination claims under the federal Age Discrimination in Employment Act (“ADEA”), the written release must be drafted in such a way that the employee’s waiver of rights under the ADEA is “knowing and voluntary.” To that end, OWBPA sets forth several specific requirements:
1. The release must be written so that it may be understood by an average individual;
2. The release must specifically refer to the age discrimination claims being released;
3. The release cannot cover claims that may arise sometime in the future;
4. The employee must receive consideration (i.e., a payment or some other benefit) above and beyond that to which he or she is already entitled;
5. The employee must be advised, in writing, to consult with an attorney;
6. The employee must be offered at least 21 days to consider the release; and
7. The employee must be given a seven-day period to revoke the release.
Many employers have incorporated these requirements into their standard release language. There is, however, considerably less awareness of OWBPA’s additional requirements for releases issued in connection with an “exit incentive” or “other employment termination program offered to a group or class of employees.” The additional requirements apply, for example, when an employer offers an early retirement package or when employees are being offered severance during a layoff. In such situations, employers must be certain that, in addition to the requirements discussed above, the release includes the following:
1. The employee must be given at least 45 days (as opposed to 21 days) to consider the release; and
2. The employee must be provided with specific information concerning the group of employees affected by the layoff, including: (1) the factors used to determine whether employees were eligible for the termination program; (2) any time limits applicable to the termination program; (3) the identity of any “class, unit, or group of individuals covered by such programs;” (4) the job titles and ages of all individuals either eligible for or selected for the termination program; and (5) the ages of all individuals in the same job classification or organizational unit who were not eligible or selected for the termination program.
Assembling this information is often not a simple task. It requires close analysis of the workforce and is usually guided by the Equal Employment Opportunity Commission’s governing regulations and guidance documents. Despite the potential difficulty of the task, it is important that the information is properly presented. More than the effectiveness of the release may hang in the balance. If an employee decides to pursue an age discrimination claim, the information is likely to draw considerable attention during the litigation.
Employers must be careful to ensure that the provisions of OWBPA are fully satisfied. In Oubre v. Entergy Operations, Inc., the United States Supreme Court held that the release requirements of OWBPA must be strictly adhered to in order for the release of the ADEA claims to be valid and enforceable. Thus, the federal courts in New York and elsewhere have consistently held that substantial compliance with OWBPA is not enough. The release must contain all of the necessary components prescribed by the statute.
This post continues our comprehensive overview of New York's new WARN regulations. In yesterday's post, we addressed coverage and triggering events. Today, we address notice requirements, exceptions to the notice requirements and penalties and enforcement.
How May Notice be Served?
Notice must be served 90 days prior to layoff. It may be served by first class mail, personal delivery with optional signed receipt, or by e-mail. The notice must be sent on the employer's official letterhead. The new regulations require that the notice be signed by an individual who has "the authority to bind the employer." Additionally, the signatory must attest to the truthfulness of all information provided in the notice. If the notice is sent by first class mail, it must be post-marked at least 90 days prior to the employment loss.
As noted, the revised regulations provide for the option of sending a NY WARN notice by e-mail. The regulations state that e-mail may be used where "all affected employees have regular access in the workplace to personal computers at which e-mail may be received and viewed during work hours." The following additional requirements must also be satisfied:
1. The employer must be able to demonstrate that the e-mail notice was received by each affected employee;
2. The e-mail address used must be an employer provided e-mail address, used in the conduct of business;
3. The e-mail must be marked "urgent;"
4. If the e-mail is returned as "undeliverable," notice must be given as expeditiously as possible (e.g. overnight delivery, hand delivery, inter-office mail, etc.);
5. If an attempt to deliver the notices exceeds five days, the employer must extend the notice period by the number of days between the time notice was first attempted and when it was finally effectuated; and
6. The e-mail notice must be sent via the employer's computer network.
Who Receives Notice?
The following individuals must receive notice under the NY WARN Act: affected employees; representative(s) of affected employees; the Commissioner of Labor; and the Local Workforce Investment Board(s) ("LWIB"). An employee who may experience an employment loss due to seniority bumping rights, for example, must also receive a notice, as long as the individual can be identified at the time notice is required to be given.
Under the revised regulations, the DOL specifically states that service of notice upon the "chief elected official of the local unit of government" in accordance with the federal WARN statute, is not sufficient to meet the notice requirements to the LWIB under the NY WARN Act. Similarly, service of notice on the LWIB may not be sufficient for notice to the chief elected official under the federal WARN statute.
Contents of the Notice
The regulations provide a detailed list of information that must be included in each notice, depending on the recipient of the notice. Notice to the affected employees must be in a language that is understandable to the employees. The notice must include, among other things: the expected date of the first separation of employees and the date the individual employee will be separated; a statement as to whether the action is temporary or permanent and whether any bumping rights exist; the identity and contact information of an employer representative; and information concerning unemployment insurance, job training and available re-employment services. In addition, the notice to an affected employee must also include the paragraph set forth below, with the underlined sentence added by the revised regulations:
You are also hereby notified that, as a result of your employment loss, you may be eligible to receive job retraining, re-employment services, or other assistance with obtaining new employment upon your termination. You may also be eligible for unemployment insurance benefits after your last day of employment. The New York State Department of Labor will contact your employer to arrange to provide additional information regarding these benefits and services to you through workshops, interviews, and other activities that will be scheduled prior to the time your employment ends. You can also access reemployment information and apply for unemployment insurance benefits on the Department's website, or you may use the contact information provided on the website to contact the Department for further information and assistance.
The notices to the Commissioner of Labor, union representative, and the local Workforce Investment Board, as described in the regulations, require certain additional information, including, for example, the date and method of delivery of the NY WARN notices, a sample of the NY WARN notice provided to the employees, and a statement as to whether other required NY WARN notices were delivered.
Exceptions to Notice
NY WARN has several exceptions to the notice requirements for certain events.
Temporary Facilities and Project Completions
No notice is required under NY WARN if the plant closing is of a temporary facility or if the plant closing or mass layoff results from the completion of a particular project or undertaking and the affected employees were hired with the understanding that their employment was limited to the duration of the facility or project or undertaking. The revised regulations require that an employer be able to demonstrate that it informed each employee at time of hire that the job was temporary.
The revised regulations also exempt seasonal employment from coverage under NY WARN. Thus, if a layoff or closing is the result of a particular seasonal project or the affected employees were hired with the understanding their employment was limited to the seasonal project, an employer need not provide notice to the affected employees under NY WARN. However, the employer must demonstrate that it informed each employee at the time of hire that the job was seasonal. Additionally, the revised regulations state that employment in an industry that is typically seasonal in nature does not necessarily make the employment seasonal for purposes of NY WARN.
Natural Disasters and Strikes/Lockouts
NY WARN includes an exception from the notice requirement for employment losses due to "any form of natural disaster" including floods, earthquakes, droughts, storms, tidal waves, tsunamis, or similar effects of nature. An employer also is not required to serve written notice where it is permanently replacing an economic striker, as defined under the National Labor Relations Act.
NY WARN contains a faltering company exception which eliminates the need for notice if: (1) at the time notice would have been required, the employer was actively seeking capital or business; (2) there was a realistic opportunity to obtain the capital or business; (3) the needed capital or business if obtained would enable the employer to avoid or postpone the employment action; and (4) the employer reasonably and in good faith believed that the giving of notice would have precluded the employer from obtaining the needed capital or business. The regulations state that the faltering company exception will be viewed on a "company-wide" basis. A company with "access to capital markets or with cash reserves" cannot avail itself of this exception by looking solely at the financial condition of the single site of employment. As noted, the revised regulations make explicit that employment losses caused by a bankruptcy may still trigger notice under NY WARN.
NY WARN dispenses with the notice requirement if the need for notice was not "reasonably foreseeable" at the time notice would have been required. A business circumstance is not reasonably foreseeable, according to the proposed regulations, upon the occurrence of some "sudden, dramatic, and unexpected action or condition outside the employer's control." Examples in the regulations include: "a principal client's sudden and unexpected termination of a major contract with the employer, a strike at a major supplier of the employer, an unanticipated and dramatic major economic downturn, or a government-ordered closing of an employment site that occurs without notice."
Penalties and Enforcement
Unlike the federal WARN Act, which may be enforced only by commencing an action in court, NY WARN may be enforced by NYS DOL through its administrative procedures, in addition to a cause of action in court. The agency's authority includes its ability to examine "any information of an employer" that is necessary to assess whether a violation occurred or the applicability of any defense. The revised regulations include a provision which allows the DOL to share a NY WARN Act violation with other public entities who are making fitness, responsible contractor or due diligence inquiries.
An employer found to have violated NY WARN is subject to a civil penalty of not more than $500 for each day of the employer's violation. An employer also is liable to each employee who did not receive the proper notice for backpay and benefits for the period of violation, up to a maximum of 60 days. According to NYS DOL Counsel's Office, backpay liability under NY WARN is calculated by determining the wages owed to an employee up to a maximum of 60 days' wages. Under the federal WARN law, backpay liability is generally measured by counting the number of work days that would have been worked in a 60 day period and assessing liability equal to wages that would have been earned during that period. Thus, backpay liability under NY WARN is likely to be greater than under the federal WARN statute.
An employer is not subject to the civil penalty under NY WARN if, in lieu of notice, it pays the affected employees all of their wages and benefits for the notice period, within three weeks from the date the employer orders the plant closing or other triggering event, and the employer includes a short form notice to the employees at the time of their final wage payment or termination.
An employer's liability may also be reduced by any voluntary payments made by the employer to the affected employees, which were not required to satisfy any legal obligations. Therefore, severance or other payments that may be required under a collective bargaining agreement or pursuant to a separation agreement will not be credited against an employer's liability.
Finally, the revised regulations added that where an employer fails to give notice, the period of violation is 90 days. However, the regulations do not reconcile this violation period provision with the 60-day maximum penalty provision. At this point, it remains somewhat unclear what the effect is of this new provision in the revised regulations and how to reconcile it within the 60-day maximum backpay liability under NY WARN.
While NY WARN contains many provisions and requirements that mirror those found in the federal WARN statute, there are also significant differences in coverage, triggering events, and the form of notice. Further, some of the revised emergency regulations significantly affect an employer's obligations under NY WARN and will require particular attention from New York employers that are contemplating work force reductions.
As we reported earlier this year, the New York State Department of Labor ("NYS DOL") recently issued revised, emergency regulations concerning the New York State Worker Adjustment and Retraining Notification Act ("NY WARN"), Section 860 of the New York Labor Law. The revised regulations, 12 NYCRR Part 921, are effective immediately and replace the regulations first published by the agency in January 2009. This two-part post provides an overview of NY WARN, and specifically addresses the major revisions contained in the revised regulations, including the use of e-mail to notify employees, expanded information now required in the notices, a requirement that an employer representative "attest to the truthfulness of all information" contained in the WARN notices, and a specification that WARN notice may be required even where the triggering event was caused by a bankruptcy. In today’s post, we address coverage questions and triggering events. In tomorrow’s post we will cover notice requirements, exceptions to the notice requirements, and penalties and enforcement.
NY WARN Coverage
Generally, NY WARN requires 90 days advance notice to employees and other designated officials prior to a mass layoff, plant closing, relocation, or covered reduction in hours which, in general, affects 25 or more employees. Employers in New York have been required to comply with the federal WARN Act notice requirements for over 20 years. NY WARN however, applies to more employers and requires more notice than the federal WARN statute. Failure to comply with the advance notice requirements before laying off workers may subject an employer to significant back pay liability and other penalties.
Who is Covered by the NY WARN Act?
Employers with 50 or more employees within New York State must comply with NY WARN. The regulations require an employer to count every employee, other than part-time employees, toward the 50-employee threshold. In addition, an employer must count all employees (other than part-time employees) on temporary layoff or on leave, if the individual has a reasonable expectation of recall. The NY WARN regulations, like the federal WARN Act, define a "part-time employee" as an employee who is employed for an average of fewer than 20 hours per week OR an employee who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required.
An employer may also be required to comply with NY WARN even if it does not employ 50 or more full-time employees. Specifically, if the employer employs 50 or more employees (including all employees regardless of status as part-time or full-time), and those employees work in the aggregate 2,000 or more hours per week, the employer must comply with the NY WARN Act.
What Triggers the Requirement for NY WARN Notice?
According to the statute and the revised regulations, there are four events that trigger the notice requirement under NY WARN:
The notice requirements under NY WARN are triggered where there is a reduction in the work force that results in an employment loss at a single site of employment during any 30-day period for:
1. 25 employees, excluding part-time employees, constituting at least 33% of the employees at the site (For example, a layoff of 30 employees at a single site with a total of 90 employees); or
2. 250 or more employees, excluding part-time employees.
The 90-day NY WARN notice is also required for the permanent or temporary shutdown of a single site of employment, or of one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss during any 30-day period for 25 or more employees, excluding part-time employees. The NY regulations follow the federal WARN Act and define an "operating unit" as "an organizationally or operationally distinct product, operation, or specific work function within or across facilities at a single site of employment." Under NY WARN, a covered plant closing may occur where an employer closes a department or assembly line in a plant or facility, if it results in an employment loss for at least 25 employees.
A "relocation" is a unique triggering event under NY WARN and is not included in the federal WARN statute. Under the regulations, a relocation is defined as "the removal of all or substantially all of the industrial or commercial operations of an employer to a different location 50 miles or more away from the original site of operation, where 25 or more employees, excluding part-time employees, suffer an employment loss"
Covered Reduction in Hours
The NY WARN notice requirement is also triggered where there has been a 50% or more reduction in the hours of work during each month of any consecutive six-month period. The revised regulations specify that to be covered, the reduction of hours must affect:
1. at least 25 employees constituting at least 33% of the employees at the site; or
2. 250 or more employees.
Notably, the NY regulations specifically exclude from the definition of "employment loss" a covered reduction of hours where an employer participates in NYS DOL's Shared Work Program. The Shared Work Program permits an employer to reduce the hours of work of employees, up to a maximum of 60%, and the employees are able to supplement lost income with partial unemployment insurance benefits from NYS DOL. Therefore, as long as an employer validly participates in NYS DOL's Shared Work Program, a reduction in hours of work that would otherwise trigger the NY WARN Act requirements, would be exempt from the notice requirement.
When determining whether notice is required for NY WARN, employers must aggregate employment losses over a 90-day period. Generally, an employer should look backward 90 days and forward 90 days to assess whether actions, taken and planned, will in the aggregate, reach the minimum number to trigger notice. The only exception to aggregating employment losses is where the employer can demonstrate that the losses resulted from separate and distinct actions and causes.
Transfer of Employees
No notice is required if the employer offers to transfer employees to a different site of employment within a reasonable commuting distance, which is defined by the revised regulations to mean "the distance an individual could be reasonably expected to commute." However, in no event shall that distance exceed that which can reasonably be traveled in one and one-half hours, when the site of employment is being moved to a location within New York City or Long Island, or one hour anywhere else in the state. The revised regulations add a provision that eliminates the transfer offer notice exception where the new job otherwise constitutes a constructive discharge.
In tomorrow's post we will cover notice requirements, exceptions to notice requirements and penalties and enforcement.
At a time when many companies are owned or heavily leveraged by private equity firms, a decision by the District Court for the District of Connecticut in Austen v. Catterton Partners V, LP serves as a warning that such entities may be held liable for WARN Act violations by companies in which they have invested. The Federal WARN Act generally requires at least 60 days’ notice prior to a mass layoff or plant closing. In New York, the state WARN Act requires 90 days’ notice of such events.
Catterton Partners V, LP, a Greenwich, Connecticut-based private equity firm, with over $2.0 billion in holdings such as Outback Steakhouse, Breyers Yogurt and Restoration Hardware, also owned Archway & Mother’s Cookies, Inc., (“Archway”) whose companies produced various brands of cookies, including cookies sold under private label programs for national retailers such as Target and Kroger.
Archway filed for bankruptcy protection in October 2008, shortly after it closed its factories and laid off hundreds of workers without notice. In a class action WARN Act complaint filed in August 2009, plaintiffs, who are former Archway employees, alleged that Catterton was an “employer” for WARN Act purposes and should be held liable for the failure to provide workers with notice prior to shutdown of the factories and termination of their employment.
On February 17, 2010, the United States District Court for the District of Connecticut denied Catterton’s motion to dismiss, holding that the private equity firm and the bankrupt cookie company may be considered a “single employer” for WARN Act purposes. In so concluding, the Court adopted a five-part test contained in the federal regulations implementing the WARN Act, which assesses whether two separate entities should be combined for purposes of WARN Act liability. 20 C.F.R. § 639.3(a)(2). The test assesses whether: (1) the entities are subject to common ownership; (2) the directors and/or officers of the entities are the same; (3) the parent exercises de facto control over the subsidiary; (4) there is a unity of personnel policies emanating from a common source; and (5) there is a dependency of operations among the entities.
Notably, the Court concluded that the de facto control prong is perhaps the most important aspect of the test, because it assesses whether the parent was the decisionmaker who is responsible for the actions giving rise to the litigation. Because the complaint alleged that Catterton made the decision to shut down the factories, terminate the employees and file for bankruptcy, there was no dispute as to the extent of Catterton’s control over Archway. Based on application of the test to the allegations of the complaint, the Court’s ruling means that Catterton may be held liable for WARN Act damages for a class of perhaps 600-700 employees. Given the widespread nature of private equity investment in American companies and the ongoing economic downturn, Austen v. Catterton Partners V, LP may be a harbinger of other efforts to reach into the “deep pockets” private equity firms.
On February 12, 2010, the New York State Department of Labor issued revised, emergency regulations concerning the New York State Worker Adjustment and Retraining Notification Act (“NY WARN Act”), Section 860 of the New York Labor Law. The revised regulations are effective immediately and replace the regulations first published by the agency in January 2009. The NY WARN Act requires 90 days advance notice to employees and other designated officials prior to a mass layoff, plant closing, relocation or covered reduction in hours, which, in general, affects 25 or more employees.
Employers considering upcoming employee layoffs or plant shutdowns should review closely the revised regulations. Included among the many changes made by the revised regulations are the following:
use of email to notify employees;
a requirement that the notice from the employer be signed by an individual who can bind the employer and that the individual attest to the truthfulness of all information contained in the notice;
an expansion of the types of information that must be included on the various notice forms; and
a specification that an employer’s violation of NY WARN may be shared with other public entities in New York.