Category: Termination

WARN Webinar Recap

Don’t Forget To WARN (Webinar Recap)

On January 23, 2019, I presented a complimentary webinar called “Don’t Forget to WARN.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • New York and Federal WARN Acts
  • Plant Closings vs. Mass Layoffs
  • Notice Timing, Contents, and Recipients
  • Nuances, Exceptions, and Penalties

Employers preparing to layoff or terminate sufficiently large numbers of employers usually must issue written notices in advance. The New York WARN Act is even more burdensome and restrictive than the federal law. In some cases, New York employers must comply with both. Many other states also have their own similar laws.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Don’t Forget To WARN”

The New York State WARN Act applies to private companies with at least 50 employees in New York. Covered employers might have to issue notices at least 90 days before laying off or terminating 25 or more employees, depending on the circumstances. Some exceptions apply.

These laws are very complex, with many nuances and gray areas. Here are some questions we’ll answer:

  • When do we have to give notice?
  • What information must the notices contain?
  • Do part-time employees count?
  • How much does it cost if we don’t comply?
  • What if I’m selling or buying a business?

Although you’ll ultimately want to work with an experienced employment lawyer to determine your WARN compliance obligations, this webinar will get you oriented to know when you might have a notice obligation.

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New York Unemployment Benefits Severance Pay

Severance Pay Affects New York Unemployment Benefits

Since a 2014 reform to New York State’s Unemployment Insurance System, employees are generally not eligible to receive both severance pay and unemployment insurance at the same time. However, there are exceptions and nuances to this rule. As a result, employers sometimes have options that can affect their former employees’ receipt of New York unemployment benefits.

[You might also want to review this article on “Contesting New York Unemployment Claims”.]

New York Unemployment Benefits

In New York, employees must be completely unemployed and actively seeking work to be eligible for unemployment benefits. Most unemployed individuals with sufficient work history will be eligible for benefits. Employees who resigned or engaged in misconduct might not receive benefits.

Until several years ago, severance pay did not change employees’ New York unemployment benefits. Now, however, it often will.

What is Severance Pay?

New York’s unemployment insurance law defines severance pay as “payments made by an employer to an employee due to separation from employment.” Severance pay generally does not include payments regarding retirement, health insurance, accrued leave, or unemployment benefits.

The law recognizes that severance pay can be paid in several payments or one lump sum. And now the timing of the payment(s) matters for unemployment purposes.

Why Timing Matters

Whether severance pay affects unemployment benefits can depend on when the employer makes the payments.

If an employee receives severance pay within 30 days of his or her last day of employment, the severance may offset the unemployment benefits. In that scenario, the employee will not receive unemployment if the weekly severance payments (or pro rata portion of a lump-sum payment) are higher than the maximum weekly unemployment benefit rate. Once the severance payments have ended, the employee may be eligible to receive unemployment benefits (assuming they meet standard eligibility requirements).

On the other hand, if the employee does not begin receiving severance pay until more than 30 days have passed since their last day of employment, they can immediately collect unemployment. In this situation, the severance pay will not affect New York unemployment benefits at all.

(The “last day of employment” is the last day an employee was actually working or was on paid leave.)

Keep This in Mind

Eligibility to receive New York unemployment benefits is often an important issue for departing employees. Employers should carefully consider unemployment issues in developing severance packages.

When employers have options in structuring the severance payout, they should factor in the impact on unemployment benefits. The decisions involved can have meaningful financial implications for both the employer’s business and the former employee. The “right” choice will likely vary in different situations.

Laborers Section 75 New York Labor Class

Laborers in New York Get Discipline Protection

As of September 7, 2018, New York’s Civil Service Law now extends disciplinary protections to public employees in the labor class. On that date, Governor Cuomo signed off on an amendment to Civil Service Law Section 75, which has long established procedures for disciplining many governmental employees in the State. Before this recent amendment, most laborers were excluded.

What Is the Labor Class?

According to the Civil Service Law, the labor class includes all unskilled laborers employed by governmental employers within the state. It does not include positions for which a competitive examination is available.

Which Civil Service Employees Does Section 75 Cover?

Before the amendment, Section 75 covered the following members of the Classified Civil Service (with limited exceptions):

  • All competitive class permanent appointees.
  • Any permanent appointee who was honorably discharged from the U.S. armed forces after serving in time of war.
  • Any permanent appointee who is an exempt volunteer firefighter.
  • An employee who has served at least 5 years of continuous service in a non-competitive position not designated as confidential or influencing policy.
  • A non-competitive employee of New York City in the position of Homemaker or Home Aide who has at least 3 years of continuous service in the position.
  • A police department employee holding the position of detective for three continuous years or more.

Now employees in the labor class get the same protections as non-competitive class employees. Thus, it applies to laborers with at least 5 years of continuous service. The exclusion for confidential or policy-influencing positions also applies, but it is unlikely that many laborers would have those designations.

Waiver of Section 75 Protections

Section 75 establishes default due process requirements for disciplining covered employees. However, employees can waive the protections of Section 75,

Many collective bargaining agreements between unions and public employers establish grievance and arbitration procedures in lieu of those provided by Section 75. Many labor class employees were already subject to these alternative procedures. For them, the amendment will not have any direct impact.

Click here for more on the detailed requirements of Civil Service Law Section 75.

What This Means for Public Employers with Laborers

The change to the law took effect immediately upon Governor Cuomo’s signing. Therefore, any labor class employees with 5 years of continuous service now have job protection–either through Section 75 or a pre-existing contractual alternative.

Governmental entities in New York (including municipalities and school districts) whose laborers previously had no contractual job protection now face a different reality. They must follow Section 75 before disciplining qualifying employees in the labor class.

 

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