Tag: WARN

Conducting Your Next Reduction in Force

Conducting Your Next Reduction in Force (Webinar Recap)

On May 22, 2018, I presented a complimentary webinar called “Conducting Your Next Reduction in Force.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

Click here to watch the webinar now.

In the webinar, I discuss:

  • Selection Procedures
  • Notice Requirements
  • Severance Programs
  • Union Issues

An important focus is on planning and executing a reduction in force without creating liability. This includes avoiding discrimination based on protected characteristics such as age, race, and sex.

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

Why You Should Watch “Conducting Your Next Reduction in Force”

Whereas discharging one employee can be problematic, the potential claims arising from a group termination multiply.

If your organization is contemplating separating multiple employees at this same time for related reasons, then you should benefit from this presentation. I discuss some specific steps for the reduction in force from beginning to end. I offer insights on what can go wrong and what your business should do to avoid missteps.

Learn how to cover your legal bases while downsizing, rightsizing, and more here.

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New York WARN Act

New York WARN Act

State and federal Worker Adjustment and Retraining Notification (WARN) Acts require companies to provide notice before taking certain actions to reduce the size of their workforce. For employers conducting reductions in force in New York, the state law will almost always be more restrictive. Thus, complying with New York’s WARN Act will usually also satisfy the federal requirements.

[Here’s a succinct infographic on the New York WARN Act.]

Covered Employers

The New York WARN Act requires employers with at least 50 total employees to give written notice before implementing covered workforce reductions affecting at least 25 employees.

“Part-time employees” and properly classified independent contractors do not count in determining whether a WARN event will occur. However, the definition of “part-time employee” is multifaceted and likely to differ from how the company normally classifies its workers.

Timing of Notice

The New York WARN Act requires written notice 90 days before a “plant closing,”  “mass layoff,” or “relocation”. Each of those terms has a nuanced definition under the law.

WARN Notice Events

A “plant closing” occurs 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 25 or more employees during any 30-day period.*

A “mass layoff” occurs where there is to be a group reduction in force that does not result from a plant closing, but will result in an employment loss at the employment site during any 30-day period* for: (a) 250 or more employees, or (b) 25-249 employees if they make up at least 33% of the employer’s active workforce.

*Sometimes the 30-day periods referenced above extend to 90-days in determining whether WARN notices are required.

New York’s WARN Act also refers to a “relocation” situation that is not part of the federal WARN Act. In New York, a “relocation” occurs where all or substantially all of the industrial or commercial operations of an employer will be removed to a different location 50 miles or more away from the original site of operation and 25 or more employees suffer an employment loss.

An “employment loss” occurs in any of these situations: (a) employment terminations other than a discharge for cause, voluntary departure, or retirement; (b) layoffs exceeding six months; and (c) a reduction in an employee’s hours of work of more than 50% in each month of any six-month period. Hence, companies may need to issue WARN notices even if the intention is not to permanently end the employees’ employment.

Exceptions

WARN notices may not be required every time the above conditions exist. The exceptions, however, are narrowly applied. Any company seeking to rely on one should discuss the matter with an attorney experienced in working with the WARN Acts.

For example, the WARN Acts recognize a “faltering company” exception. But the mere fact that the company must reduce its workforce isn’t enough to qualify for the exception. (Or else there would be no point to the laws in the first place!). This exception only applies to plant closings and is limited to situations where a company has sought new capital or business in the attempt to stay open and giving notice would ruin the opportunity to get the new capital or business.

Similarly, an “unforeseeable business circumstances” exception applies to closings and layoffs caused by business circumstances that were not reasonably foreseeable when notice would otherwise have been required. But, the employer still must give as much notice as possible.

Here are some other scenarios where WARN notices may not be required:

  • The company offers to transfer employees to a different work location within a reasonable commuting distance.
  • The reduction of force results from the completion of a project for which the employees were hired with the understanding that their employment was only for the limited duration of the project (e.g., seasonal employment).
  • A new company will continue employment in connection with the sale of a business.
  • A closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought, or storm.
  • The company permanently replaces economic strikers in accordance with the National Labor Relations Act.

WARN Notice Recipients

When notices are required, they must be sent to:

  • affected employees,
  • their unions (if applicable), and
  • certain local, state, and federal government officials.

When the New York State Department of Labor receives a WARN notice, it publishes the information on its website.

Penalties

If a company should have given notice under the New York WARN Act and does not, then it may be held liable for damages to each employee who should have received notice. The employer may have to pay up to 60 days’ pay and benefits, plus civil penalties and attorneys’ fees.

Plan Ahead to Comply with the New York WARN Act

This law forces employers to plan months ahead before reducing their workforces by large numbers. The exceptions generally do not protect employers just because they didn’t know about or want to comply with the notice requirements. As soon as a reduction in force becomes foreseeable, companies must contemplate WARN Act compliance. Sometimes, these requirements will end up forcing employers to delay their desired employment actions. Advance planning and consultation with an experienced labor attorney are usually the best means of avoiding or alleviating that outcome.

 

You may also be interested in my free webinar: Conducting Your Next Reduction in Force.

New York Employment Law by the Numbers

New York Employment Law by the Numbers

In an earlier post I listed some of the most important numbers pertaining to federal (U.S.) labor and employment laws. This time we’ll look at the numbers that stand out specifically for New York employment law compliance.

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1 – Employee threshold for many employment laws

As with federal laws, many aspects of New York employment law apply to employers with as few as one employee. This includes State minimum wage/overtime, wage payment, worker’s compensation, disability benefits, paid family leave, and sexual harassment laws.

4 – New York Human Rights Law prohibits discrimination

New York employees of employers with at least 4 employees are protected by New York’s employment discrimination laws. This is a much lower coverage threshold than similar federal laws. They typically don’t apply until an employer has at least 15 or more employees. The New York Human Rights Law prohibits discrimination on the basis of age, sex, sexual orientation, religion, race, national origin, disability, and predisposing genetic characteristics. It also protects employees from discrimination based on familial status, marital status, military status, and domestic violence victim status.

Note: The New York Human Rights Law prohibits all employers, with a few as one employee, from engaging in sexual harassment.

6 – Statute of limitations for wage claims, in years

New York employees can file claims for unpaid or underpaid wages going back as far as six years. This is much longer than the 2- (sometimes 3-) year statute of limitations under the federal Fair Labor Standards Act.

8* – Annual New York Paid Family Leave allowance, in weeks

In 2018, eligible employees may take up to 8 weeks of leave under the New York Paid Family Leave Program. In 2019 the maximum leave period increases to 10 weeks. It increases again in 2021, to 12 weeks.

$10.40 – Minimum wage for Upstate employees

New York’s minimum wage requirements depend on geographic location and employer size. On December 31, 2017, the base minimum wage for all employees outside of New York City and Nassau, Suffolk, and Westchester Counties increased to $10.40 per hour.

Click here for more details, with charts, about current and future minimum wages throughout New York State.

18 – Age at which New York Human Rights Law begins to prohibit age discrimination

Unlike the federal Age Discrimination in Employment Act (ADEA), New York’s employment discrimination law prohibits age discrimination against employees in both directions. The ADEA only protects employees 40 years old or older from suffering adverse employment actions because they are too old. However, the New York Human Rights Law allows employees 18 or older to claim discrimination either because they are too old or too young.

20 – Weekly hours parameter for New York Paid Family Leave

An employee’s eligibility for New York Paid Family Leave depends on how many hours they are regularly schedule to work in a week. Employees regularly scheduled to work at least 20 hours per week become eligible once they have worked for their employer for 26 consecutive weeks. Employees regularly scheduled to work less than 20 hours per week become eligible once they have worked on 175 days for the employer.

25 – New York WARN notice triggering events

The New York State Workforce Adjustment Retraining Notification Act (WARN) requires employers to give written notice before mass layoffs, plant closings, and relocations that will cause employment loss for at least 25 employees, sometimes more.

30 – Minimum length of meal period for most employees, in minutes

New York labor law requires that all employees who work at least 6 hours in a shift (sometimes less) be off duty for a meal period of at least 30 minutes. Additional time may be required in some cases.

For more details, see Got Lunch? A Primer on the New York Meal Period Requirements.

50 – New York WARN covered employer

Non-governmental employers with 50 or more employees within New York State are potentially subject to New York WARN notice obligations.

90 – Days in advance New York WARN notices must be issued

This is longer than the federal WARN Act’s 60-day notice period. The employer must notify affected employees (and their unions, if applicable) and certain government officials. There are exceptions to the notice obligation. If circumstances require the employer to act suddenly, the employer usually must give as much notice as possible.

$780 – Required weekly salary for some New York overtime exemptions (Upstate)

New York’s administrative and professional exemptions from the State’s minimum wage and overtime rules require that employees receive a minimum weekly salary. As with the minimum wage, the salary requirement depends on location within the State and size of the employer. As of December 31, 2017, the minimum salary for these exemption (outside of NYC, Nassau, Suffolk, and Westchester) is $780 per week.

Click here for more details, with charts, about current and future salary requirements throughout New York State.

New York Employment Law Is Complex

These numbers only help demonstrate some of the compliance obstacles New York employers face. And, unfortunately, New York employment law changes frequently. Plus, many New York employers must also satisfy a maze of federal employment laws at the same time.

One great way to keep on best practices and developments regarding New York employment law is through my monthly newsletter. It’s easy to sign up for it here!