New York Codes, Rules and Regulations
Title 12 - DEPARTMENT OF LABOR
Chapter XII - Division Of Employment And Training
Part 921 - New York State Worker Adjustment And Retraining Notification (warn) Requirements
Subpart 921-6 - Exceptions
Section 921-6.2 - Faltering company
Universal Citation: 12 NY Comp Codes Rules and Regs ยง 921-6.2
Current through Register Vol. 46, No. 12, March 20, 2024
(a) This exception applies only to plant closings as defined under the Act. An employer qualifies for a reduced notice under this exception if at the time notice would have been required:
(1) The
employer was actively seeking capital or business and identifies the specific
actions taken to obtain such capital or business. For example, the employer
must demonstrate its efforts to obtain financing or refinancing through the
arrangement of loans, the issuance of stocks, bonds, or other methods, or to
obtain additional money, credit, or business through any other commercially
reasonable method; and
(2) There
was a realistic opportunity to obtain the capital or business sought;
and
(3) The capital or business
sought would have been sufficient, if obtained, to enable the employer to avoid
or postpone the plant closing; and
(4) The employer reasonably and in good faith
believed that giving notice would have precluded the ability to obtain the
needed capital or business. The employer must be able to objectively
demonstrate that a potential customer or financing source would have been
unwilling to provide the new business or capital if notice were given. This
condition may be satisfied if the employer can show that the financing or
business source would not choose to do business with a troubled company or with
a company whose workforce would be looking for other jobs.
(b) For the purposes of this Part, the employer's actions will be viewed in a company-wide context. A company with access to capital markets or with cash reserves may not avail itself of this exception by looking solely at the financial condition of the single site of employment to be closed and doing so shall constitute a violation of the Act and this Part.
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