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; and allows the attorney general to take certain action to assist certain employees in receiving back pay and other liabilities.
STATE OF NEW YORK
________________________________________________________________________
8562
IN SENATE
June 16, 2020
___________
Introduced by Sen. MAYER -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
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; and allowing the attorney general to take
certain action to assist certain employees in receiving back pay and
other liabilities
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;
16 (b) any trust or other estate in which such person has a substantial
17 beneficial interest or as to which such person serves as trustee or in a
18 similar fiduciary capacity; and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15578-07-0
S. 8562 2
1 (c) any relative or spouse of such person, or any relative of such
2 spouse, who has the same home as such person.
3 4. "Beneficial owner", when used with respect to any securities, means
4 a person:
5 (a) that, individually or with or through any of its affiliates or
6 associates, beneficially owns such securities, directly or indirectly;
7 or
8 (b) that, individually or with or through any of its affiliates or
9 associates, has (i) the right to acquire such securities, whether such
10 right is exercisable immediately or only after the passage of time,
11 pursuant to any agreement, arrangement or understanding, whether or not
12 in writing, or upon the exercise of conversion rights, exchange rights,
13 warrants or options, or otherwise; or (ii) the right to vote such secu-
14 rities pursuant to any agreement, arrangement or understanding, whether
15 or not in writing; provided, however, that a person shall not be deemed
16 the beneficial owner of any securities under this subparagraph if the
17 agreement, arrangement or understanding to vote such securities (1)
18 arises solely from a revocable proxy or consent given in response to a
19 proxy or consent solicitation made in accordance with the applicable
20 rules and regulations under the Exchange Act and (2) is not then report-
21 able on a Schedule 13D under the Exchange Act, or any comparable or
22 successor report; or
23 (c) that has any agreement, arrangement or understanding, whether or
24 not in writing, for the purpose of acquiring, holding, voting, except
25 voting pursuant to a revocable proxy or consent as described in subpara-
26 graph (ii) of paragraph (b) of this subdivision, or disposing of such
27 securities with any other person that beneficially owns, or whose affil-
28 iates or associates beneficially own, directly or indirectly, such secu-
29 rities.
30 5. "Control", including the terms "controlling", "controlled by" and
31 "under common control with", means the possession, directly or indirect-
32 ly, of the power to direct or cause the direction of (a) the management
33 and policies of a person, (b) the operation of a person, or (c) substan-
34 tially all of the assets of a person, whether through the ownership of
35 voting securities, by contract, or otherwise. A person's beneficial
36 ownership of ten percent or more of an entity's outstanding voting secu-
37 rities shall create a presumption that such person has control of such
38 entity. Notwithstanding the foregoing, a person shall not be deemed to
39 have control of an entity if such person holds voting securities, in
40 good faith and not for the purpose of circumventing this section, as an
41 agent, bank, broker, nominee, custodian or trustee for one or more bene-
42 ficial owners who do not individually or as a group have control of such
43 entity.
44 6. "Employment loss" means:
45 (a) an employment termination, other than a discharge for cause,
46 voluntary departure other than in anticipation of an announced facility
47 closing or mass layoff, or retirement;
48 (b) a mass layoff exceeding six months;
49 (c) a reduction in hours of work of more than fifty percent during
50 each month of any consecutive six-month period.
51 "Employment loss" shall not result under circumstances where a [plant]
52 facility closing or mass layoff is the result of the relocation or
53 consolidation of part or all of the employer's business and, before the
54 closing or mass layoff, the employer offers to transfer the employee to
55 a different site of employment within a reasonable commuting distance
56 with no more than a six-month break in employment, or the employer
S. 8562 3
1 offers to transfer the employee to any other site of employment, regard-
2 less of distance, with no more than a six-month break in employment, and
3 the employee accepts within thirty days of the offer or of the closing
4 or mass layoff, whichever is later.
5 [3.] 7. "Employer" means any business enterprise that employs fifty or
6 more employees[, excluding part-time employees, or fifty or more employ-
7 ees that work in the aggregate at least two thousand hours per week].
8 "Employer" shall include any affiliate of an employer. "Employer" shall
9 not include the federal or state government or any of their political
10 subdivisions, including any unit of local government or any school
11 district.
12 [4.] 8. "Exchange Act" means the act of Congress known as the Securi-
13 ties Exchange Act of 1934, as the same has been or hereafter may be
14 amended from time to time.
15 9. "Mass layoff" means a reduction in force which:
16 (a) is not the result of a [plant] facility closing; and
17 (b) results in an employment loss for those working at or reporting to
18 a single site of employment during any thirty-day period for[:
19 (i) at least thirty-three percent of the employees (excluding part-
20 time employees); and
21 (ii) at least twenty-five employees (excluding part-time employees);
22 or
23 (iii) at least two hundred fifty employees (excluding part-time
24 employees)] twenty or more employees.
25 [5. "Part-time employee" means an employee who is employed for an
26 average of fewer than twenty hours per week or who has been employed for
27 fewer than six of the twelve months preceding the date on which notice
28 is required.
29 6. "Plant] 10. "Facility closing" means the permanent or temporary
30 shutdown of a single site of employment, or one or more facilities or
31 operating units within a single site of employment, if the shutdown
32 results in an employment loss at the single site of employment during
33 any thirty-day period for [twenty-five] twenty or more employees [(other
34 than part-time employees)].
35 [7.] 11. "Representative" means an exclusive representative within the
36 meaning of section 9(a) or 8(f) of the National Labor Relations Act (29
37 U.S.C. 159(a), 158(f)) or section 2 of the Railway Labor Act (45 U.S.C.
38 152).
39 [8.] 12. "Relocation" means the removal of all or substantially all of
40 the industrial or commercial operations of an employer to a different
41 location fifty miles or more away.
42 13. "Person" means any individual, partnership, association, corpo-
43 ration, cooperative, limited liability company, firm, trust, or other
44 entity.
45 § 2. Subdivisions 5 and 7 of section 860-b of the labor law, as added
46 by chapter 475 of the laws of 2008, are amended to read as follows:
47 5. In the case of a sale of part or all of an employer's business, the
48 seller shall be responsible for providing notice for any [plant] facili-
49 ty closing or mass layoff in accordance with this section, up to and
50 including the effective date of the sale. After the effective date of
51 the sale of part or all of an employer's business, the purchaser shall
52 be responsible for providing notice for any [plant] facility closing or
53 mass layoff in accordance with this section. Notwithstanding any other
54 provision of this article, any person who is an employee of the seller
55 as of the effective date of the sale shall be considered an employee of
56 the purchaser immediately after the effective date of the sale.
S. 8562 4
1 7. Nothing set forth herein shall be read to prevent an employer who
2 is not required to comply with the notice requirements of this section,
3 to the extent possible, to provide notice to its employees about a
4 proposal to close a [plant] facility or permanently reduce its work-
5 force.
6 § 3. Subdivision 1 of section 860-c of the labor law, as added by
7 chapter 475 of the laws of 2008, is amended to read as follows:
8 1. In the case of a [plant] facility closing or mass layoff, an
9 employer is not required to comply with the notice requirement in subdi-
10 vision one of section eight hundred sixty-b of this article if:
11 (a)[(i) at the time the notice would have been required, the employer
12 was actively seeking capital or business; and
13 (ii) the capital or business sought, if obtained, would have enabled
14 the employer to avoid or postpone the relocation or termination; and
15 (iii) the employer reasonably and in good faith believed that giving
16 the notice required by subdivision one of section eight hundred sixty-b
17 of this article would have precluded the employer from obtaining the
18 needed capital or business;
19 (b) the need for a notice was not reasonably foreseeable at the time
20 the notice would have been required;
21 (c)] the [plant] facility closing is of a temporary facility or the
22 [plant] facility closing or mass layoff is the result of the completion
23 of a particular project or undertaking, and the affected employees were
24 hired with the understanding that their employment was limited to the
25 duration of the facility or project or undertaking;
26 [(d)] (b) the [plant] facility closing or mass layoff is due to any
27 form of natural disaster, such as a flood, earthquake, or drought, or a
28 federal, state or local state of emergency has been declared; or
29 [(e)] (c) the facility closing or mass layoff constitutes a strike or
30 constitutes a lockout not intended to evade the requirements of this
31 article. Nothing in this article shall require an employer to serve
32 written notice when permanently replacing a person who is deemed to be
33 an economic striker under the National Labor Relations Act (29 U.S.C.
34 151 et seq.). Nothing in this article shall be deemed to validate or
35 invalidate any judicial or administrative ruling relating to the hiring
36 of permanent replacements for economic strikers under the National Labor
37 Relations Act.
38 § 4. The opening paragraph of section 860-d of the labor law, as added
39 by chapter 475 of the laws of 2008, is amended to read as follows:
40 A mass layoff of more than six months which, at its outset, was
41 announced to be a mass layoff of six months or less with an announced
42 expected date of recall shall be treated as an employment loss under
43 this article unless:
44 § 5. Section 860-e of the labor law, as added by chapter 475 of the
45 laws of 2008, is amended to read as follows:
46 § 860-e. Determinations with respect to employment loss. In determin-
47 ing whether a [plant] facility closing or mass layoff has occurred or
48 will occur, employment losses for two or more groups of employees at a
49 single site of employment, each of which is less than the minimum number
50 of employees specified in [subdivisions four or six] subdivision nine or
51 ten of section eight hundred sixty-a of this article but which in the
52 aggregate meet or exceed that minimum number set forth in such subdivi-
53 sions, and which occur within any ninety-day period shall be considered
54 to be a [plant] facility closing or mass layoff unless the employer
55 demonstrates that the employment losses are the result of separate and
S. 8562 5
1 distinct actions and causes and are not an attempt by the employer to
2 evade the requirements of this article.
3 § 6. Subdivisions 2, 4, 6, 7 and 8 of section 860-g of the labor law,
4 as added by chapter 475 of the laws of 2008, are amended to read as
5 follows:
6 2. Back pay and other liability under this section is calculated for
7 the period of the employer's violation, [up to a maximum of sixty days,]
8 or one-half the number of days that the employee was employed by the
9 employer, whichever period is smaller.
10 4. The amount of an employer's liability under subdivision one of this
11 section, shall be reduced by the following:
12 (a) Any wages, except vacation moneys accrued before the period of the
13 employer's violation, paid by the employer to the employee during the
14 period of the employer's violation.
15 (b) Any voluntary and unconditional payments made by the employer to
16 the employee that were not required to satisfy any legal obligation.
17 (c) Any [payments by the employer to a third party or trustee, such as
18 premiums for health benefits or payments to a defined contribution
19 pension plan, on behalf of and attributable to the employee for the
20 period of the violation.
21 (d) Any] liability paid by the employer under any applicable federal
22 law governing notification of mass layoffs, [plant] facility closings,
23 or relocations.
24 [(e)] (d) In an administrative proceeding by the commissioner, any
25 liability paid by the employer prior to the commissioner's determination
26 as the result of a private action brought under this article.
27 [(f)] (e) In a private action brought under this article, any liabil-
28 ity paid by the employer in an administrative proceeding by the commis-
29 sioner prior to the adjudication of such private action.
30 6. [If an employer proves to the satisfaction of the commissioner that
31 the act or omission that violated this article was in good faith and
32 that the employer had reasonable grounds for believing that the act or
33 omission was not a violation of this article, the commissioner may, in
34 his or her discretion, reduce the amount of liability provided for in
35 this section. In determining the amount of such reduction, the commis-
36 sioner shall consider (a) the size of the employer; (b) the hardships
37 imposed on employees by the violation; (c) any efforts by the employer
38 to mitigate the violation; and (d) the grounds for the employer's
39 belief.
40 7.] An aggrieved employee, local government, or an employee represen-
41 tative seeking to establish liability against an employer may bring a
42 civil action on behalf of the person, other persons similarly situated,
43 or both, in any court of competent jurisdiction, within the time period
44 provided by section two hundred thirteen of the civil practice law and
45 rules. The court may award reasonable attorneys' fees as part of costs
46 to any plaintiff who prevails in a civil action brought under this arti-
47 cle. If the court determines that an employer conducted a reasonable
48 investigation in good faith, and had reasonable grounds to believe that
49 its conduct was not a violation of this article, the court may reduce
50 the amount of any penalty it would otherwise impose against the employer
51 under this article.
52 [8.] 7. Neither the commissioner nor any court shall have the authori-
53 ty to enjoin a [plant] facility closing, relocation, or mass layoff
54 under this article; provided, however, whenever an employer is liable
55 pursuant to subdivision one of this section, application may be made by
56 the attorney general in the name of the people of the state of New York
S. 8562 6
1 to a court or justice having jurisdiction by a special proceeding to
2 issue an injunction, and upon notice to the defendant of not less than
3 five days, to enjoin and restrain the actions of such employer or take
4 such other actions the attorney general may deem appropriate to enforce
5 the provisions of subdivision one of this section. In connection with
6 any such proposed application, the attorney general is authorized to
7 take proof and make a determination of the relevant facts and to issue
8 subpoenas in accordance with the civil practice law and rules.
9 8. No waivers of liability under this article shall be enforceable
10 unless supervised by a court, the commissioner or certified class coun-
11 sel.
12 § 7. This act shall take effect immediately.