Current through Register Vol. 45, No. 52, December 27, 2023
As used in this Part (rule), Act shall mean the New York
State Worker Adjustment and Retraining Notification (WARN) Act (article 25-A of
the New York State Labor Law). Additionally, the terms have the following
meanings:
(a) Affected employee means
an employee, whether full-or part-time, who, at the time notice is required to
be given, may reasonably be expected to experience an employment loss as a
result of a proposed plant closing, mass layoff, relocation, or covered
reduction in hours by the employer and is therefore entitled to notice. The
term affected employee also includes employees who will likely lose their jobs
because of bumping rights or other factors, to the extent that such individual
employees reasonably can be identified at the time notice is required to be
given. The term affected employee includes a managerial and supervisory
employee, but does not include an officer, director, shareholder, member of an
LLC, or business partner with a 10 percent or greater ownership interest, or a
consultant or contract employee who has a separate employment relationship with
another employer and is paid by that employer or who is
self-employed.
(b) Consolidation of
all or part of a business means the combining of two or more branches, units,
divisions, or like parts of an employer's business operations.
(c) Date of layoff means the last day an
employee is eligible or permitted to work for their employer. The fact that an
employer continues to pay an employee after the date of the layoff does not
change the employee's employment status for purposes of this Part. Payments to
an employee subsequent to the date of layoff, whether continuing to pay an
employee's normal weekly wage, or for severance pay, vacation pay, personal
leave, and other similar benefits, shall not extend the employee's date of
layoff.
(d) Days means calendar
days.
(e) Employer.
(1) Employer means any business enterprise,
whether for-profit or not-for-profit, that employs 50 or more employees (see
paragraph (7) of subdivision (e) of this section) within New York State,
excluding part-time employees, or 50 or more employees including part-time
employees within the state that work in aggregate at least 2,000 hours per
week. For purposes of this Part:
(i) The
calculation of total weekly hours shall include overtime hours earned on a
regular basis;
(ii) Overtime hours
earned on a regular basis shall mean any overtime hours worked by an employee
when such employee has worked overtime in seven or more weeks out of the twelve
weeks immediately prior to the date upon which notice was required under the
Act.
(2) Independent
contractors, and subsidiaries that are wholly or partially owned by a parent
company, may be treated as separate employers depending on the degree of their
independence from the parent. Some of the factors to be considered in making
this determination include, but are not limited to:
(1) common ownership;
(2) common directors and/or
officers;
(3) de facto exercise of
control;
(4) unity of personnel
policies emanating from a common source; and
(5) the dependency of operations.
(3) A receiver, trustee,
debtor-in-possession, or other fiduciary, where those terms are applicable
under the provisions of the U.S. Bankruptcy Code (Title 11 of the United States
Code), or any other provision of federal or state law where such party is
responsible for continuing operations of the business entity, is considered an
employer under this Part.
(4) Where
a client-employer of a professional employer organization (PEO) has worksite
employees under article 31 of the Labor Law, such employees, with the exception
of the client-employer's officers, directors, shareholders or partners, are
employees of the client-employer for purposes of this Part.
(5) An employer may have one or more sites of
employment under common ownership or control.
(6)
(i) The
term employer shall not include the federal or state government or any of their
political subdivisions, including any unit of local government or any school
district, any public authority, public benefit corporation, board, or
commission, or any federally recognized Indian tribal government.
(ii) Private for-profit and not-for-profit
businesses contracting with such exempted governmental entities are
employers.
(7) Number of
employees: In reaching a determination whether an employer meets the threshold
of 50 employees for purposes of establishing coverage as an employer under this
rule:
(i) All individuals employed at a
single site of employment, including individuals who work remotely but are
based at the employment site, other than part-time employees, are counted as
employees for purposes of determining coverage as an employer.
(ii) Individuals on temporary layoff or on
leave who have a reasonable expectation of recall, other than part-time
employees, are counted as employees. An employee has a reasonable expectation
of recall when the employer can demonstrate that it notified the employee that
their employment has been temporarily interrupted and that the employee will be
recalled to the same or a similar job, or when the employee is notified through
industry practice.
(iii) The point
in time at which the number of employees is to be measured for the purpose of
establishing coverage is the date the first notice is required to be
given.
(f)
Employment loss.
(1) The term employment loss
means:
(i) An employment termination, other
than a discharge for cause, voluntary departure, or retirement;
(ii) A mass layoff, as defined in subdivision
(i) of this section, that exceeds six months in duration; or
(iii) A reduction in hours of work of more
than 50 percent during each month of any consecutive six-month period:
(a) For either:
(1) At least 25 employees constituting at
least 33 percent of the employees at the site (excluding part-time employees);
or
(2) At least 250 employees
(excluding part-time employees) regardless of whether they comprise 33 percent
of the employees at the site (excluding part-time employees).
(b) For purposes of this
provision, a reduction in hours of work shall not be deemed to have occurred
during any week that the employee is receiving unemployment insurance benefits
as a partial wage replacement for lost hours of work through the employer's
participation in a shared work program under Title 7-A of article 18 of the New
York Labor Law, provided however, that should the employer become aware at any
point during its participation in the shared work program that an employment
loss not subject to this exception will occur, the employer shall provide as
much notice of the employment loss as is practicable accompanied by a statement
of the basis for reducing the notice period.
(c) For purposes of this provision, the
consecutive six-month period shall begin with the first month in which the
employee experiences a reduction of more than 50 percent and shall continue for
a period of 26 weeks beginning with the first week in which there was a
reduction in hours compared with the previous week.
(d) For purposes of this provision, a
temporary layoff is a mass layoff with a duration of less than a consecutive
six-month period and a planned return of employees after the layoff period
ends, which will not be deemed to be subject to the notice requirements set
forth in this Part. A permanent layoff is a mass layoff that extends beyond a
consecutive six-month period for which the employer must comply with the notice
requirements in this Part from the time of the employment loss.
(iv) A plant closing as defined in
subdivision (m) of this section affecting 25 or more employees, excluding
part-time employees.
(v) A
relocation as defined in subdivision (n) of this section affecting 25 or more
employees, excluding part-time employees.
(2) An employee does not suffer an employment
loss while the employee is reassigned or transferred to an employer-sponsored
program, such as retraining or job search activities, as long as the
reassignment does not constitute a constructive discharge or other involuntary
termination, or otherwise trigger an employment loss as set forth
above.
(3) Employment loss shall
include a plant closing, mass layoff, covered reduction in work hours, or
relocation that is a result of a bankruptcy filing or the sale of a business
(see subdivision
921-2.1 of section (b) of this
Part).
(g) Facility
means a building or other location in which the business operations of an
employer takes place.
(h) Hours of
work shall generally mean the average hours of work per week for each employee
during the previous calendar year. If the employee did not work for at least 90
days during the previous calendar year, hours of work shall mean the average
hours of work per week for the 90-day period prior to the date on which notice
was due. Overtime hours will be included, if applicable, as described in
subdivision (e)(1) of this section.
(i) Mass layoff means a reduction in
workforce that:
(1) Is not the result of a
plant closing; and
(2) Results in
an employment loss at a single site of employment during any 30-day period,
beginning on the date of the first employment loss, for either:
(i) At least 25 employees (excluding
part-time employees) constituting at least 33 percent of the employees at the
site (excluding part-time employees);
(ii) At least 250 employees (excluding
part-time employees) regardless of whether they comprise 33 percent of the
employees at the site.
(j) Merger means a combination of all or part
of the business operations of two separate employers.
(k) Operating unit means an organizationally
or operationally distinct product, operation, or specific work function within
or across facilities at a single site of employment.
(l) Part-time employee means an employee who
is employed for an average of fewer than 20 hours per week or who has been
employed for fewer than six of the 12 months preceding the date on which notice
is required. Part-time employees for purposes of this Part may include
employees who have worked full-time for fewer than six of the 12 months
preceding the date on which notice is required. In determining whether an
employee worked an average of fewer than 20 hours per week, the shorter of the
actual period the employee was employed or the 90 day period immediately prior
to the date on which the notice is required shall be used.
(m) Plant closing means the permanent or
temporary shutdown of a single site of employment, or one or more facilities or
operating units within a single site of employment, if the shutdown results in
an employment loss during any 30-day period at such site for 25 or more
employees, excluding any part-time employees. An employment action that results
in the effective cessation of production or of the work performed by a unit,
even if a few employees remain, is a shutdown. A temporary shutdown triggers
the notice requirement if the minimum number of terminations, layoffs exceeding
six months, or reductions in work hours constitute an employment loss under the
Act.
(n) Relocation means the
removal of all or substantially all of the industrial or commercial operations
of an employer to a different location fifty miles or more away from the
original site of operation where 25 or more employees, excluding part-time
employees, suffer an employment loss. For the purposes of this Part, relocation
of substantially all of the operations of an employer shall include the
relocation of an entire unit, product line, division or other segment of the
employer's operation.
(o) Employee
representative means an exclusive representative of employees within the
meaning of section 9(a) or 8(f) of the National Labor Relations Act
(29 U.S.C.
159(a),
158(f)), section
2 of the Railway Labor Act (45 U.S.C. 152), or the New York
Labor Relations Act (New York Labor Law sec. 700 et seq.). Where an event
requiring notice occurs at an employment site involving employees represented
by more than one bargaining unit, notice must be sent to each bargaining unit
representing employees affected by the plant closing, mass layoff, relocation
or covered reduction in work hours.
(p) Single site of employment.
(1) For the purposes of this Part, the
following shall apply to the determination of whether an employment loss
involves a single site of employment:
(i)
Several single sites of employment within a single building may exist if
separate employers conduct activities within the building. For example, an
office building housing 50 different businesses will contain 50 single sites of
employment.
(ii) A single site of
employment may refer to either a single location or a group of contiguous
locations in proximity to one another even though they are not directly
connected to one another. For example, groups of structures which form a campus
or industrial park or separate facilities across the street from one another
owned by the same employer may be considered a single site of
employment.
(iii) Separate
buildings or facilities which are not physically connected or are not in
proximity to one another may be considered a single site of employment if they
are in reasonable geographic proximity, are used by the employer for the same
purpose, and share the same staff or equipment. Where an employer has two
separate locations in the geographic area and the purpose of one location is to
support the operations of the other location, and this support requires travel
between the two locations, the two locations will be considered a
single-site.
(iv) Contiguous
buildings occupied by the same employer that have separate management, produce
different products or provide different services, and have separate workforces
do not constitute a single site of employment.
(v) Non-contiguous sites in the same
geographic area that have separate management, produce different products or
provide different services, and have separate workforces do not constitute a
single site of employment.
(vi) The
single site of employment for employees whose primary duties require travel
from point to point, who are out-stationed, or whose primary duties involve
work outside any of the employer's regular employment sites (e.g., railroad
employees, bus drivers, salespersons), shall be the site to which they are
assigned as their employer's home base, from which their work is assigned, or
to which they report.
(q) Local board means a Local Workforce
Investment Board as defined by the Workforce Investment Act, or a Local
Workforce Development Board as defined by the Workforce Innovation and
Opportunity Act, or any similar local workforce board defined under a federal
law which amends or supersedes the Workforce Innovation and Opportunity Act or
its successors.
Amended
New
York State Register June 21, 2023/Volume XLV, Issue 25, eff.
6/21/2023
