The NY Mini-WARN Act requires businesses to provide advanced notice of major layoffs, business closures, and other changes in operation including facility relocation and reduction in work hours. Covered employers with 50 or more employees must give 90-day advance notice to all affected parties, including employees, union representatives, and the Commissioner of Labor and thus allow individuals and communities time to transition. This newly published amendment updates the rules for businesses on the affected entities they need to notify, which employees are included, the type of information they need to provide, and what procedures to follow in situations where an exception to the 90-day notice requirement may apply.

New entities are added to be notified

While the NY Mini-WARN Act previously required covered employers to provide notice of major layoffs and business closures to employees, their union representatives, and the Commissioner of Labor, the new amendment adds notification requirements to the chief elected official of the local government, the school district, and the locality that provides police, firefighting, and emergency services.

Remote employees added

The NY Mini-WARN Act amendment clarifies that employees who are primarily remote but are “based at the employment site” will be considered employees for purposes of determining whether an employer meets the 50-employee threshold required to trigger NY Mini-WARN.

Additional information is required in the notice

The new amendment also requires additional information be included in the NY Mini-WARN Act notices.

The notice to the Commissioner of Labor must now include, among other things, the business and email addresses of the employer’s agent, an employee representative, and affected employees so that the state can contact for additional information. Businesses must also include the total number of full-time and part-time employees at the employment site and the number of employees that are affected by the layoff or the closure and whether the affected employees are paid hourly, salaried, or by commission.

The notice to the affected employees must now include, among other things, any additional information known at the time of the notice that is relevant, including but not limited to information on severance packages and available worker assistance.

A formal application and review process for exceptions is outlined

Some businesses may be qualified for one of the five exceptions, such as unforeseen circumstances and employment loss as a result of a strike, and thus be allowed to give notice when it is practicable, and in some instances outside the 90-day notice period. The new amendment provides that a business must first submit a request for exception, supplementing with the necessary documentation and possibly affidavits to the Commissioner of Labor in order to qualify for the exception. The Commissioner will determine whether to grant the exception after proper investigation. Factors to be taken into consideration include the size of the employer, the hardships employees may face, and any efforts by the employer to mitigate the violation of the 90-day notice.

NY Mini-WARN Act in context of transactions

The amendments also clarify considerations in the context of a transaction. Specifically, if as a condition of a transaction, the purchasing employer agrees to the re-employment of those employed by a seller’s business, and if a purchasing employer then breaches that promise of re-employment, then the purchasing employer must comply with the NY Mini-WARN Act notice requirements.

In short, the amendments clarify but also add complexity to compliance with the NY Mini-WARN Act. Businesses anticipating layoffs and closures should seek proper legal counsel to ensure compliance and a smooth transition of their business operations.