Amd §§860-a, 860-b, 860-c, 860-d, 860-e & 860-g, Lab L
Removes the exclusion of part-time employees from certain definitions relating to employment and expanding the definition of employer; removes certain exclusions for employer notice requirements for the closing of a facility; removes the discretionary reduction of penalties for employers for certain acts or omissions concerning notice requirements for mass layoffs, relocations or employment loss; removes the maximum time period for determining back pay and other liabilities for certain employees who experience employment loss; allows the attorney general to take certain action to assist certain employees in receiving back pay and other liabilities; requires employers to pay severance to employees when there is a plant closing, relocation, or mass layoff.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7781
SPONSOR: Bronson TITLE OF BILL:
An act to amend the labor law, in relation to removing the exclusion of
part-time employees from certain definitions relating to employment and
expanding the definition of employer; removing certain exclusions for
employer notice requirements for the closing of a facility; removing the
discretionary reduction of penalties for employers for certain acts or
omissions concerning notice requirements for mass layoffs, relocations
or employment loss; removing the maximum time period for determining
back pay and other liabilities for certain employees who experience
employment loss; allowing the attorney general to take certain action to
assist certain employees in receiving back pay and other liabilities;
and requiring employers to pay severance to employees when there is a
plant closing, relocation, or mass layoff
PURPOSE OR GENERAL IDEA OF BILL:
To support workers in the economic rebuilding necessary to recover from
the COVID-19 pandemic by strengthening protections during mass layoffs
and requiring severance for all workers subject to mass layoffs.
SUMMARY OF PROVISIONS:
Section 1: Amends the definitions section to:
(a) define the term "affiliate";
(b) define the term "associate";
(c) define the term "beneficial owner";
(d) define the term "control";
(e) change the definition of "employment loss" to include workers who
resign in anticipation of a facility closing, relocation or mass layoff;
(f) change the definition of "employer" to include affiliates of the .
employer;
(g) define the term "exchange act";
(h) change the definition of "mass layoff" to include employees not
physically stationed at the facility and reduce the employee. threshold
test to twenty or more employees;
(i) strike the definition of "part-time employee";
(j) define the term "person"; and
(k) change the definition of "plant closing" by re-titling it "facility
closing", to reduce the employee threshold test to twenty or more
employees, and to eliminate the part-time employee exception.
Section 2: Conforms certain provisions to recognize the change from the
definition of "plant closing" to "facility closing".
Section 3: Eliminates the faltering business, unforeseen circumstance,
and natural disaster exceptions to the notice requirements and associ-
ated liability and penalties for violations.
Section 4: Amends section 860-d to require that an employer specify an
expected date of recall at the outset of the layoff in order to rely on
the unforeseen circumstance exception with respect to mass layoffs of
less than three months which are extended to more than three months.
Section 5: Conforms certain provisions to recognize the change from the
definition of "plant closing" to "facility closing".
Section 6: Amends the section heading of section 860-g to include refer-
ence to severance.
Section 7:
(a) Removes the sixty-day cap on the number of days of back pay for
which an employer is liable when there is a WARN Act violation;
(b) excludes from the list of payments which reduce an employer's back
pay liability any payments from an employer to a third party or trustee
(such as health benefits or pension benefits);
(c) strikes current paragraph 6 of section 860-g of the labor law, which
allows the commissioner of the Department of Labor to reduce an employ-
er's back pay liability to its workers upon application by the employer
to prove that the violation was in good faith and that the employer had
reasonable grounds for believing that its actions or omissions did not
constitute a violation;
(d) adds a limited opportunity for employers affected by natural disas-
ter to apply to the department of labor to prove that a violation of the
WARN Act was the direct result of a natural disaster, and provides that,
if the department of labor agrees, the department of labor may, in its
discretion, reduce the amount of liability resulting from the violation;
(e) provides that the attorney general may enforce provisions of the
WARN Act that establish an employer's liability to employees when there
is a WARN Act violation; and
(f) requires that an employer that must give notice under the WARN Act
shall pay severance to its employees at a rate of one week of pay for
each year of employment, plus an additional four weeks of severance if
the employer fails to give timely notice to its employees, provided'
that, if the employer is otherwise required to pay severance to an
employee for any other reason, the employee will receive the greater of:
the amount provided for by this provision, or the amount of severance
otherwise required to be paid, but not both. The four-week severance
liability in the event of a violation is offset by any back pay that is
paid to employees pursuant to the New York WARN Act or the federal WARN
Act.
Section 8: Sets the effective date.
JUSTIFICATION:
Following the COVID-19 pandemic and the economic issues that continue to
challenge the nation and the State has brought into sharp focus the need
for immediate, pragmatic, and long-term actions to ensure workers are
supported by strong economic safeguards, even during states of emergency
and tumultuous financial situations. Moreover, the previous crises
underscore that New York's private sector workers, especially those who
provide essential services in health care, transportation, food
services, agriculture, and retail, among other industries, are vitally
important to the functioning of our society. During and following the
COVID-19 pandemic, New York's essential workers put their lives on the
line to deliver important life-sustaining services to their fellow New
Yorkers and Americans across the country.
Perhaps the most painful financial consequence of the pandemic was the
catastrophic loss of jobs. Layoffs and business closures are emotionally
taxing and financially painful events for individuals and their fami-
lies, and can also have significant impacts on the State, local communi-
ties,, and other businesses that feel the economic ripple effects. These
consequences are made even more dire when layoffs are announced sudden-
ly, as occurred when the State imposed COVID-19 lockdown measures, leav-
ing affected parties without sufficient time to react and adjust. The
State assumes some of the burden in many cases, including by providing
unemployment assistance and other social services support, but in some
circumstances, the employer should assume financial responsibility for
its layoffs.
Recognizing the challenges posed by surprise job losses, the New York
State Worker Adjustment and Retraining Notification (WARN) Act requires
employers with 50 or more employees who plan a mass layoff, facility
shutdown, or relocation to provide 90 calendar days' advance written
notice to affected employees, appropriate labor representatives, the New
York Department of Labor, and certain other relevant government entities
prior to such employment loss. This buffer time period allows workers to
find alternate employment and take other steps to protect themselves
from the imminent financial challenges associated with being laid off.
At a time when workers continue to face difficult times from the effects
of the pandemic and a number of economic challenges, this financial
runway has never been more important. To hold employers to account when
they do not comply with the WARN Act, the statute imposes penalties and
liability for back pay.
Notwithstanding worker protections in the current statute, many mass
Layoffs, nonetheless, result in violations for which employees are not
properly compensated. For instance, current law allows parties with
financial interests in a business to use corporate shields or other
sophisticated legal tactics to avoid some of the obligations of the WARN
Act that fall on the employer, even if those financial actors effec-
tively exercise control over the business.
Such brazen activity has• been well-documented over the years in the
private equity industry, but a telling, recent, pre-pandemic example is
the case of the Doral Arrowwood Resort, located in the Village of Rye
Brook. The hotel informed its approximately 275 employees on Christmas
Eve of 2019 that it would be shutting down on January 12, 2020, just 19
days later. These employees, many of whom worked there for decades, were
faced with the prospect of being unemployed and without income in short
order, putting most of them at significant personal financial risk.
Although they were due back pay under the WARN Act, the complicated
nature of the legal proceedings regarding the ownership of the hotel,
and the loopholes and exceptions present in the current statute, allowed
numerous opportunities for the lenders and other financial investors to
challenge workers' WARN Act protections. While the intricate ownership
and lending structure was being sorted out in a foreclosure proceeding,
the employees were forced to the sidelines, uncertain if they would
receive anything. In a rare but welcome victory, the workers ultimately
won and received their back pay, but that result was held up for nearly
two years by legal wrangling arising out of t he shortcomings of the
current WARN Act statute, and many of them suffered further financial
distress due to the compounding effects of the pandemic while waiting
for that compensation.
Frustrations with current law such as these are made worse by COVID-19
and the associated economic difficulties, which have created new oppor-
tunities for employers to take advantage of a variety of loopholes in
the law to engage in malfeasance and assert spurious justifications to
evade compliance with the WARN Act. For example, these statutory escape
hatches exempt employers from the notice requirements by asserting that
a mass layoff was "not reasonably foreseeable". While this was undoubt-
edly the case for many businesses when the disaster emergency was first
declared, the pandemic and depressed economy also acted as cover for
employers to lay off workers without sufficient notice and escape their
financial obligations to them.
This bill, similar to reforms signed into law in New Jersey in 2020,
constitutes comprehensive reform to protect private sector workers in
mass layoff situations and ensures augmented stability and accountabil-
ity as we rebuild our economy. As a centerpiece, this legislation would
require that severance be paid to every laid off worker when there is a
qualifying employment loss under the WARN Act. Severance payments would
be equal to one week of pay for each year of service, a recognition of
the value of worker loyalty. Additional progressive, worker-centric
changes include broadening the definition of liable employers, closing
easily exploited loopholes, and empowering the State to take a more
active enforcement role. These changes position this legislation as a
powerful backstop to ensure more certain and equitable remedies for
workers' lost employment and to hold culpable corporate actors responsi-
ble in mass layoff situations. These.policy changes would also have the
ancillary benefit of alleviating some of the financial burden placed.on
the State when large numbers of workers are suddenly laid off, a welcome
respite for an unemployment assistance program that has been stretched
to the breaking point.
The economic reverberations of the COVID-19 pandemic and the resulting
unprecedented unemployment only underscores the fragility of many work-
ers' financial situations. The shortcomings in current law leave room
for the State to provide more stability for workers in a moment when
they most need assurances of economic security, and this bill is part of
a paradigm shift which is necessary to better protect our workers in the
ongoing uncertainty regarding COVID-19 and its attendant consequences.
What follows is a more in-depth description of notable policy changes to
be affected by this legislation:
1. GUARANTEED SEVERANCE.ct. CT.
When a worker decides to continue an employment relationship with a
single employer for a long period of time, that worker foregoes other
opportunities: other jobs, other skills, and other experiences. This can
significantly jeopardize their prospects for any other employment. They
may be seen by new prospective employers as lacking a bright future,
unable to be retrained for a new job, or dismissed in the job market as
"past their prime". A worker that loyally sticks with an employer year
after year makes a sacrifice that should be respected and recognized by
the employer.
Too often, however, this does not happen, especially in the corporate
takeover context. Private equity's "financialization" approach to busi-
ness frequently involves taking control of companies only to then
effect. layoffs and closures that are financially engineered to result
in investor profits at workers' expense. Imposing a severance require-
ment will have both a deterrent effect on financially engineered layoffs
and provide additional compensation to workers who suffer job losses as
a result.
Regardless of the context, business closures and mass layoffs necessar-
ily entail widespread and enormous disruption of workers' lives and
livelihoods. Because traditional unemployment assistance only pays a
portion of a worker's typical wages, it does not function as a true
income replacement for workers who, through no fault of their own, lose
the job that allows them to meet their expenses. For those who struggle
to put food on the table and make rent even before being laid off, full
severance pay can be the difference when it comes to surviving until new
employment can be found.
2. ELIMINATING DEPARTMENT OF LABOR DISCRETION TO REDUCE EMPLOYER BACK
PAY LIABILITY.ct. CT.
Current law allows an employer the opportunity to prove to the Depart-
ment of Labor that a WARN Act violation was in good faith and that the
employer had reasonable grounds for believing that its actions or omis-
sions did not constitute a violation. If the Department of Labor is
convinced that such an argument has merit, it may reduce the liability
of the employer to its workers. This provision is contrary to the goal
of protecting workers embodied by the WARN Act and should be removed.
Whether the violation was in good faith or bad faith, the workers still
suffer the same harm and therefore should still receive the same compen-
sation. The bill does leave intact this exception with respect to fines
by the Department of Labor for violations, as these fines are separate
and apart from an employer's liability to its employees for back pay.
3. ELIMINATING THE FALTERING BUSINESS AND LACK OF FORESEEABILITY
EXCEPTIONS; REFORMING THE NATURAL DISASTER EXCEPTION.ct. CT.
In the context of the WARN Act, a business should not be exempt from
liability for back pay in the case of a facility closing because the
business was faltering and trying to find funding at the time when
notice was required. The same applies for unforeseeable events. In
neither case is the harm to the worker reduced. Such provisions encour-
age disproportionate distribution of remaining resources to investors
and other financially interested parties, despite the fact that such
parties are more likely to be able to bear the financial impact of an
unfavorable business situation. The workers likely have only this one
job, which is often their sole source of income. When weighing these
competing interests, it is proper to support those who are at the great-
est disadvantage, and for that reason these exceptions should be
removed. Understanding that certain natural disasters are sudden and
unavoidable, but that there should be a nexus of causation between the
disaster and layoffs in order for relief from liability to apply, the
blanket natural disaster exception has been replaced by a process for
employers to apply to the Department of Labor for relief from liability
due to violations directly caused by a natural disaster.
4, REVISE THE DEFINITION OF "EMPLOYER" TO INCLUDE BUSINESS AFFILIATES
AND CONTROLLING INVESTORS AND LENDERS.ct. CT.
Liability in WARN Act situations falls on the employer. Accordingly,
strategic financial actors sometimes seek to escape WARN Act liability
by setting up corporate shields in a variety of multiple-entity owner-
ship structures, exerting financial pressure without formally establish-
ing management control, shifting significant debt to the business, and
other financial or legal maneuvers to avoid being categorized as the
"employer" under the WARN Act. By expanding this definition to include
those entities that exert indirect control or make decisions that ulti-
mately lead to the mass layoff, relocation, or facility closing, this
legislation deters some of the tactics used to escape the legal obli-
gation to pay workers when there is a violation.
5. EXTEND THE REACH OF THE WARN ACT.ct. CT.
Currently, the WARN Act only applies to employers that have 50 full-time
employees, or in the alternate, employees working, in the aggregate, at
least 2,000 hours per week. Whether an employee is part-time or full-
time, and how many total hours of employee work done for an employer
does not change the basic premise that an employee has an employment
relationship with the employer, and it may be the only job they have.
This bill recognizes this circumstance in the context of the WARN Act by
capturing those employers who would otherwise have WARN Act duties but
for the fact that their 50 or more employees do not collectively work 50
forty-hour weeks. By broadening the definition of "employee," and by
lowering the threshold for applicability, the WARN Act will cover many
more businesses than it does now, and thereby protect many more workers.
In addition, changes to the definition of "mass layoff" simplify the
determination for what is a mass layoff by reducing it to a twenty-em-
ployee test. Currently, a mass layoff involves a situation in which a
facility does not close down, but (I) at least 33% of the workforce
(which must constitute 25 or more employees) is laid off, or (II) 250 or
more employees are laid off. For example, an employer of 70 employees
could lay off 24 employees--more than one-third of its workforce-and yet
not satisfy the test of a mass layoff. Perhaps more dramatic is a situ-
ation in which a very large employer (750 employees or more) could lay
off up to 249 employees without such situation constituting a mass
layoff. As a final matter, this bill clarifies that many workers that
are not necessarily stationed at a particular job site nonetheless have
their employment tied to its operations and may lose their job as a
consequence.
6. EXTEND THE MAXIMUM PERIOD OF LIABILITY TO THE FULL 90-DAY NOTICE
PERIOD.ct. CT.
Although the New York State WARN Act requires employers to provide at
least 90 days of notice prior to a mass layoff, relocation, or employ-
ment loss, an employer's back pay liability to its workers for a
violation is currently limited to only 60 days. As a result, workers
receive the same back pay whether the notice is 60 days late or 90 days
late. This results in a perverse situation in which an employer has much
less incentive to give any notice at all if it plans a mass layoff,
relocation, or employment loss within 30 days. The civil penalty of
$500 per day for 30 days ($15,000 total) is a pittance to many employ-
ers, even those in enough financial' trouble to consider a workforce
reduction.
Of more practical importance to the workers in many situations is the
fact that they are suddenly without a paycheck, and therefore without a
means to make rent, feed their families, or pay their medical bills. In
this context, while an additional 30 days of violation means little
financially to the employer under current law, those 30 days are crit-
ical to a worker who needs to immediately find a new job, especially
because this issue only occurs in circumstances in which notice is given
less than 30 days from the date on which the worker will be laid off.
With such limited time.to find new employment, everyday counts.
By extending the number of days of back pay for which an employer is
liable to the full 90-day notice period, this bill will eliminate the
current mismatch of incentives by linking the employer's financial
liability for back pay to the full period of violation, thereby encour-
aging employers to give as much notice as possible at a time when it is
arguably most crucial to their workers.
7. EXPLICIT ATTORNEY GENERAL ENFORCEMENT OF BACK PAY LIABILITY.ct. CT.
One of the most significant barriers to workers receiving the back pay
they are due in WARN Act situations is that the employer is in financial
trouble, and a number of more organized claimants with greater resources
(e.g. banks) are also vying for what value remains in the business.
Currently, while the workers, labor representatives, and local munici-
palities can bring an action and the Department of Labor can use admin-
istrative proceedings to address the issue of back pay, the Attorney
General does not have express authority to step in to enforce the law to
protect workers. Because the scales are tilted against the workers in
this way, the state should be given all the tools it needs to move expe-
ditiously in order to enforce workers' rights to back pay.
PRIOR LEGISLATIVE HISTORY:
2023-24': referred to Labor;
2022: referred to Labor.
FISCAL IMPLICATIONS:
Potential savings from reduced unemployment assistance claims.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
7781
2025-2026 Regular Sessions
IN ASSEMBLY
April 10, 2025
___________
Introduced by M. of A. BRONSON, SIMON, TAYLOR -- read once and referred
to the Committee on Labor
AN ACT to amend the labor law, in relation to removing the exclusion of
part-time employees from certain definitions relating to employment
and expanding the definition of employer; removing certain exclusions
for employer notice requirements for the closing of a facility; remov-
ing the discretionary reduction of penalties for employers for certain
acts or omissions concerning notice requirements for mass layoffs,
relocations or employment loss; removing the maximum time period for
determining back pay and other liabilities for certain employees who
experience employment loss; allowing the attorney general to take
certain action to assist certain employees in receiving back pay and
other liabilities; and requiring employers to pay severance to employ-
ees when there is a plant closing, relocation, or mass layoff
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 860-a of the labor law, as added by chapter 475 of
2 the laws of 2008, is amended to read as follows:
3 § 860-a. Definitions. As used in this article, the following terms
4 shall have the following meanings:
5 1. "Affected employees" means employees who may reasonably be expected
6 to experience an employment loss as a consequence of a proposed [plant]
7 facility closing or mass layoff by their employer.
8 2. "Affiliate" means a person that directly, or indirectly through one
9 or more intermediaries, controls, or is controlled by, or is under
10 common control with, a specified person.
11 3. "Associate", when used to indicate a relationship with any person,
12 means:
13 (a) any entity of which such person is an officer or partner or is,
14 directly or indirectly, the beneficial owner of ten percent or more of
15 any class of voting securities;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05943-01-5
A. 7781 2
1 (b) any trust or other estate in which such person has a substantial
2 beneficial interest or as to which such person serves as trustee or in a
3 similar fiduciary capacity; and
4 (c) any relative or spouse of such person, or any relative of such
5 spouse, who has the same home as such person.
6 4. "Beneficial owner", when used with respect to any securities, means
7 a person:
8 (a) that, individually or with or through any of its affiliates or
9 associates, beneficially owns such securities, directly or indirectly;
10 or
11 (b) that, individually or with or through any of its affiliates or
12 associates, has (i) the right to acquire such securities, whether such
13 right is exercisable immediately or only after the passage of time,
14 pursuant to any agreement, arrangement or understanding, whether or not
15 in writing, or upon the exercise of conversion rights, exchange rights,
16 warrants or options, or otherwise; or (ii) the right to vote such secu-
17 rities pursuant to any agreement, arrangement or understanding, whether
18 or not in writing; provided, however, that a person shall not be deemed
19 the beneficial owner of any securities under this subparagraph if the
20 agreement, arrangement or understanding to vote such securities (1)
21 arises solely from a revocable proxy or consent given in response to a
22 proxy or consent solicitation made in accordance with the applicable
23 rules and regulations under the Exchange Act and (2) is not then report-
24 able on a Schedule 13D under the Exchange Act, or any comparable or
25 successor report; or
26 (c) that has any agreement, arrangement or understanding, whether or
27 not in writing, for the purpose of acquiring, holding, voting, except
28 voting pursuant to a revocable proxy or consent as described in subpara-
29 graph (ii) of paragraph (b) of this subdivision, or disposing of such
30 securities with any other person that beneficially owns, or whose affil-
31 iates or associates beneficially own, directly or indirectly, such secu-
32 rities.
33 5. "Control", including the terms "controlling", "controlled by" and
34 "under common control with", means the possession, directly or indirect-
35 ly, of the power to direct or cause the direction of (a) the management
36 and policies of a person, (b) the operation of a person, or (c) substan-
37 tially all of the assets of a person, whether through the ownership of
38 voting securities, by contract, or otherwise. A person's beneficial
39 ownership of ten percent or more of an entity's outstanding voting secu-
40 rities shall create a presumption that such person has control of such
41 entity. Notwithstanding the foregoing, a person shall not be deemed to
42 have control of an entity if such person holds voting securities, in
43 good faith and not for the purpose of circumventing this section, as an
44 agent, bank, broker, nominee, custodian or trustee for one or more bene-
45 ficial owners who do not individually or as a group have control of such
46 entity.
47 6. "Employment loss" means:
48 (a) an employment termination, other than a discharge for cause,
49 voluntary departure other than in anticipation of an announced facility
50 closing or mass layoff, or retirement;
51 (b) a mass layoff exceeding [six] three months;
52 (c) a reduction in hours of work of more than fifty percent during
53 each month of any consecutive [six-month] three-month period.
54 "Employment loss" shall not result under circumstances where a [plant]
55 facility closing or mass layoff is the result of the relocation or
56 consolidation of part or all of the employer's business and, before the
A. 7781 3
1 closing or mass layoff, the employer offers to transfer the employee to
2 a different site of employment within a reasonable commuting distance
3 with no more than a [six-month] three-month break in employment, or the
4 employer offers to transfer the employee to any other site of employ-
5 ment, regardless of distance, with no more than a [six-month] three-
6 month break in employment, and the employee accepts within thirty days
7 of the offer or of the closing or mass layoff, whichever is later.
8 [3.] 7. "Employer" means any business enterprise that employs fifty or
9 more employees[, excluding part-time employees, or fifty or more employ-
10 ees that work in the aggregate at least two thousand hours per week].
11 "Employer" shall include any affiliate of an employer. "Employer" shall
12 not include the federal or state government or any of their political
13 subdivisions, including any unit of local government or any school
14 district.
15 [4.] 8. "Exchange Act" means the act of Congress known as the Securi-
16 ties Exchange Act of 1934, as the same has been or hereafter may be
17 amended from time to time.
18 9. "Mass layoff" means a reduction in force which:
19 (a) is not the result of a [plant] facility closing; and
20 (b) results in an employment loss for those working at or reporting to
21 a single site of employment during any thirty-day period for[:
22 (i) at least thirty-three percent of the employees (excluding part-
23 time employees); and
24 (ii) at least twenty-five employees (excluding part-time employees);
25 or
26 (iii) at least two hundred fifty employees (excluding part-time
27 employees)] twenty or more employees.
28 [5. "Part-time employee" means an employee who is employed for an
29 average of fewer than twenty hours per week or who has been employed for
30 fewer than six of the twelve months preceding the date on which notice
31 is required.
32 6. "Plant] 10. "Facility closing" means the permanent or temporary
33 shutdown of a single site of employment, or one or more facilities or
34 operating units within a single site of employment, if the shutdown
35 results in an employment loss at the single site of employment during
36 any thirty-day period for [twenty-five] twenty or more employees [(other
37 than part-time employees)].
38 [7.] 11. "Representative" means an exclusive representative within the
39 meaning of section 9(a) or 8(f) of the National Labor Relations Act (29
40 U.S.C. 159(a), 158(f)) or section 2 of the Railway Labor Act (45 U.S.C.
41 152).
42 [8.] 12. "Relocation" means the removal of all or substantially all of
43 the industrial or commercial operations of an employer to a different
44 location fifty miles or more away.
45 13. "Person" means any individual, partnership, association, corpo-
46 ration, cooperative, limited liability company, firm, trust, or other
47 entity.
48 § 2. Subdivisions 5 and 7 of section 860-b of the labor law, as added
49 by chapter 475 of the laws of 2008, are amended to read as follows:
50 5. In the case of a sale of part or all of an employer's business, the
51 seller shall be responsible for providing notice for any [plant] facili-
52 ty closing or mass layoff in accordance with this section, up to and
53 including the effective date of the sale. After the effective date of
54 the sale of part or all of an employer's business, the purchaser shall
55 be responsible for providing notice for any [plant] facility closing or
56 mass layoff in accordance with this section. Notwithstanding any other
A. 7781 4
1 provision of this article, any person who is an employee of the seller
2 as of the effective date of the sale shall be considered an employee of
3 the purchaser immediately after the effective date of the sale.
4 7. Nothing set forth herein shall be read to prevent an employer who
5 is not required to comply with the notice requirements of this section,
6 to the extent possible, to provide notice to its employees about a
7 proposal to close a [plant] facility or permanently reduce its work-
8 force.
9 § 3. Subdivision 1 of section 860-c of the labor law, as added by
10 chapter 475 of the laws of 2008, is amended to read as follows:
11 1. In the case of a [plant] facility closing or mass layoff, an
12 employer is not required to comply with the notice requirement in subdi-
13 vision one of section eight hundred sixty-b of this article if:
14 (a)[(i) at the time the notice would have been required, the employer
15 was actively seeking capital or business; and
16 (ii) the capital or business sought, if obtained, would have enabled
17 the employer to avoid or postpone the relocation or termination; and
18 (iii) the employer reasonably and in good faith believed that giving
19 the notice required by subdivision one of section eight hundred sixty-b
20 of this article would have precluded the employer from obtaining the
21 needed capital or business;
22 (b) the need for a notice was not reasonably foreseeable at the time
23 the notice would have been required;
24 (c)] the [plant] facility closing is of a temporary facility or the
25 [plant] facility closing or mass layoff is the result of the completion
26 of a particular project or undertaking, and the affected employees were
27 hired with the understanding that their employment was limited to the
28 duration of the facility or project or undertaking;
29 [(d) the plant closing or mass layoff is due to any form of natural
30 disaster, such as a flood, earthquake, or drought; or
31 (e)] (b) the facility closing or mass layoff constitutes a strike or
32 constitutes a lockout not intended to evade the requirements of this
33 article. Nothing in this article shall require an employer to serve
34 written notice when permanently replacing a person who is deemed to be
35 an economic striker under the National Labor Relations Act (29 U.S.C.
36 151 et seq.). Nothing in this article shall be deemed to validate or
37 invalidate any judicial or administrative ruling relating to the hiring
38 of permanent replacements for economic strikers under the National Labor
39 Relations Act.
40 § 4. Section 860-d of the labor law, as added by chapter 475 of the
41 laws of 2008, is amended to read as follows:
42 § 860-d. Extension of mass layoff period. A mass layoff of more than
43 [six] three months which, at its outset, was announced to be a mass
44 layoff of [six] three months or less with an announced expected date of
45 recall shall be treated as an employment loss under this article unless:
46 1. the extension beyond [six] three months is caused by business
47 circumstances (including unforeseeable changes in price or cost) not
48 reasonably foreseeable at the time of the initial mass layoff; and
49 2. notice is given at the time it becomes reasonably foreseeable that
50 the extension beyond [six] three months will be required.
51 § 5. Section 860-e of the labor law, as added by chapter 475 of the
52 laws of 2008, is amended to read as follows:
53 § 860-e. Determinations with respect to employment loss. In determin-
54 ing whether a [plant] facility closing or mass layoff has occurred or
55 will occur, employment losses for two or more groups of employees at a
56 single site of employment, each of which is less than the minimum number
A. 7781 5
1 of employees specified in [subdivisions four or six] subdivision nine or
2 ten of section eight hundred sixty-a of this article but which in the
3 aggregate meet or exceed that minimum number set forth in such subdivi-
4 sions, and which occur within any ninety-day period shall be considered
5 to be a [plant] facility closing or mass layoff unless the employer
6 demonstrates that the employment losses are the result of separate and
7 distinct actions and causes and are not an attempt by the employer to
8 evade the requirements of this article.
9 § 6. The section heading of section 860-g of the labor law, as added
10 by chapter 475 of the laws of 2008, is amended to read as follows:
11 Violation; liability; severance.
12 § 7. Subdivisions 2, 4, 6 and 8 of section 860-g of the labor law, as
13 added by chapter 475 of the laws of 2008, are amended and two new subdi-
14 visions 9 and 10 are added to read as follows:
15 2. Back pay and other liability under this section is calculated for
16 the period of the employer's violation, [up to a maximum of sixty days,]
17 or one-half the number of days that the employee was employed by the
18 employer, whichever period is smaller.
19 4. The amount of an employer's liability under subdivision one of this
20 section, shall be reduced by the following:
21 (a) Any wages, except vacation moneys accrued before the period of the
22 employer's violation, paid by the employer to the employee during the
23 period of the employer's violation.
24 (b) Any voluntary and unconditional payments made by the employer to
25 the employee that were not required to satisfy any legal obligation.
26 (c) Any [payments by the employer to a third party or trustee, such as
27 premiums for health benefits or payments to a defined contribution
28 pension plan, on behalf of and attributable to the employee for the
29 period of the violation.
30 (d) Any] liability paid by the employer under any applicable federal
31 law governing notification of mass layoffs, [plant] facility closings,
32 or relocations.
33 [(e)] (d) In an administrative proceeding by the commissioner, any
34 liability paid by the employer prior to the commissioner's determination
35 as the result of a private action brought under this article.
36 [(f)] (e) In a private action brought under this article, any liabil-
37 ity paid by the employer in an administrative proceeding by the commis-
38 sioner prior to the adjudication of such private action.
39 6. [If an employer proves to the satisfaction of the commissioner that
40 the act or omission that violated this article was in good faith and
41 that the employer had reasonable grounds for believing that the act or
42 omission was not a violation of this article, the commissioner may, in
43 his or her discretion, reduce the amount of liability provided for in
44 this section. In determining the amount of such reduction, the commis-
45 sioner shall consider (a) the size of the employer; (b) the hardships
46 imposed on employees by the violation; (c) any efforts by the employer
47 to mitigate the violation; and (d) the grounds for the employer's
48 belief.]
49 (a) Within thirty days after a natural disaster, such as a flood,
50 earthquake, or drought, an employer may make application to the commis-
51 sioner for a reduction in liability imposed under this article. If such
52 employer proves, to the satisfaction of the commissioner, that the mass
53 layoff, relocation or employment loss out of which liability arose was a
54 direct result of such natural disaster, the commissioner may, in the
55 commissioner's discretion, reduce any liability with respect to such
56 mass layoff, relocation or employment loss provided for in this article,
A. 7781 6
1 including the severance obligations provided by subdivision ten of this
2 section. In determining the amount of any approved reduction, the
3 commissioner shall consider: (i) the size of the employer; (ii) the
4 hardships imposed on employees by any and all violations; (iii) any
5 efforts by the employer to mitigate any violation or violations and any
6 reduction in liability to employees; and (iv) the degree of harm caused
7 to the employer and the employees by the natural disaster.
8 (b) Any aggrieved employee of an employer making application pursuant
9 to paragraph (a) of this subdivision seeking to challenge the determi-
10 nation of the commissioner may bring a civil action on their own behalf,
11 or on behalf of other persons similarly situated, or both, in any court
12 of competent jurisdiction, within the time period provided by section
13 two hundred thirteen of the civil practice law and rules. The court may
14 award reasonable attorney's fees as part of costs to any plaintiff who
15 prevails in a civil action brought under this article.
16 8. Neither the commissioner nor any court shall have the authority to
17 enjoin a [plant] facility closing, relocation, or mass layoff under this
18 article; provided, however, whenever an employer is liable pursuant to
19 subdivision one of this section, application may be made by the attorney
20 general in the name of the people of the state of New York to a court or
21 justice having jurisdiction by a special proceeding to issue an injunc-
22 tion, and upon notice to the defendant of not less than five days, to
23 enjoin and restrain the actions of such employer or take such other
24 actions the attorney general may deem appropriate to enforce the
25 provisions of subdivision one of this section. In connection with any
26 such proposed application, the attorney general is authorized to take
27 proof and make a determination of the relevant facts and to issue
28 subpoenas in accordance with the civil practice law and rules.
29 9. No waivers of liability under this article shall be enforceable
30 unless supervised by a court, the commissioner or certified class coun-
31 sel.
32 10. Whenever there is a plant closing, relocation, or mass layoff
33 under this article, the employer shall pay severance to each employee
34 entitled to notice who lost their employment equal to one week of pay
35 for each full year of employment. An employer who fails to give notice
36 as required by paragraph (a) of subdivision one of section eight hundred
37 sixty-b of this article before ordering a mass layoff, relocation, or
38 employment loss shall pay each such employee an additional four weeks of
39 severance pay. The rate of severance pay provided by the employer pursu-
40 ant to this section shall be the average regular rate of compensation
41 received by the employee during the last three years of employment with
42 the employer, or the employee's final regular rate of compensation,
43 whichever is higher. Severance under this subdivision shall be regarded
44 as compensation due to an employee for losses associated with the termi-
45 nation of the employment relationship, and earned in full upon the
46 termination of the employment relationship, notwithstanding the calcu-
47 lation of the amount of the payment with reference to the employee's
48 length of service. The employer shall pay the severance pay required
49 pursuant to this subdivision or the severance pay required by a collec-
50 tive bargaining agreement or for any other reason, whichever is greater.
51 The four weeks of severance pay provided for an employee by this subdi-
52 vision in the event of a failure to give notice as required by paragraph
53 (a) of subdivision one of section eight hundred sixty-b of this article
54 shall be reduced by any back pay paid to the employee pursuant to this
55 section or subsection 5 of section 2104 of the federal Worker Adjustment
56 and Retraining Notification Act (29 U.S.C. Sec. 2104 et seq.), because
A. 7781 7
1 of a violation of subsection 3 of section 2102 of such act (29 U.S.C.
2 Sec. 2102 et seq.). No waiver of the right to severance provided pursu-
3 ant to this subdivision shall be effective without approval of the waiv-
4 er by the commissioner or a court of competent jurisdiction.
5 § 8. This act shall take effect immediately.
