Tuesday, March 31, 2020

Covered Employers Must Comply With the WARN Act Prior to Laying off Employees

Employers contemplating reductions in force as a result of the Coronavirus must consider the applicable Federal and State laws prior to effectuating any layoffs, including but not limited to the WARN Act, to avoid substantial penalties.

The New York WARN ("Worker Adjustment and Retraining Notification Act") Act is not suspended during the Coronavirus. Rather, the notice must be distributed, as detailed below, as soon as possible under the circumstances (as opposed to the regular 90 day notice requirement). Failure to provide such notice may result in the employer being required to pay back wages and/or the imposition of civil penalties.

When does the WARN Act apply?:

The New York WARN Act (which is more stringent than the Federal law) covers employers with 50 or more employees under the following circumstances:
  • Plant or unit closing affecting 25 or more workers;
  • Mass layoff of 25 or more full-time workers if the workers comprise of at least 33% of all workers at the physical site;
  • Mass layoff of 250 or more full-time workers; and
  • Certain other reductions of employees' work hours.

Notice

The WARN Act requires ninety (90) day notice of a mass layoff or plant closing to:
  • Affected employees;
  • New York State Department of Labor;
  • Employee/Union Representatives; and
  • The Local Workforce Investment Board.
The notice must include the following:
  • Name/address where plant closing or mass layoff is to occur;
  • Explanation as to whether the employment loss will be permanent or temporary;
  • Expected date of scheduled layoff(s);
  • Affected positions and number of affected employees in each position;
  • Name(s) of applicable union/employee representatives; and
  • Contact information of company representative who can provide additional information.
Consult with your employment attorney to confirm the satisfaction of all of these requirements before implementing layoffs.