Current through Register Vol. 44, No. 51, December 21, 2022
(a) An
employer who fails to give notice to an employee entitled to receive notice
under this Part, is liable to each such employee, including part-time employees
for:
(1) back pay at the average regular rate
of compensation received by the employee during the three years prior to the
date of termination, or the employee's final rate of compensation, whichever is
higher. The "average regular rate of compensation" is calculated by dividing
the total regular and overtime wages earned by the employee during the three
years prior to the date of termination by the number of days worked over the
same three year period. The "final rate of compensation" is calculated by
dividing the amount received by the employee in his or her last paycheck prior
to termination divided by the number of days worked. For calculations involving
salary or commission employees, the number of days worked is the number of days
the employee was in active employment status;
(2) in the case of an employee who became an
employee of his/her current employer through a merger or consolidation of
his/her former employer with/into his/her current employer, such employee's
history of wage and benefit payments from his/her prior employer shall be
treated as if such wages and benefits were earned with his/her current employer
for purposes of making any calculations that are required under this Part,
including the payment of back wages and benefits due;
(3) the value of the cost of any benefits to
which the employee would have been entitled had his or her employment not been
lost, including the cost of any medical expenses incurred by the employee that
would have been covered under an employee benefit plan. Benefits that the
commissioner will consider shall include, but not be limited to: health
benefits, private disability coverage, life insurance, employer paid retirement
contributions, and vacation leave.
(b) Back pay and other liability under the
act is calculated for the period of the employer's violation, up to a maximum
of 60 days, or one-half the number of days that the employee was employed by
the employer, whichever period is smaller.
(c) The amount of an employer's liability,
under this section, shall be reduced by the following:
(1) Any wages, except vacation moneys accrued
before the period of the employer's violation, paid by the employer to the
employee during the period of the employer's violation. Wages are obtained
using the same calculation in paragraph (a)(1) of this section.
(2) Any voluntary and unconditional payments
made by the employer to the employee that were not required to satisfy any
legal obligations and that the employer can demonstrate were made prior to the
issuance of the commissioner's final determination. Such payments shall be made
by check or through a previously agreed upon direct deposit arrangement.
Severance packages or other payments required pursuant to employee contracts,
collective bargaining agreements, through other legal obligations, or under law
shall not be credited against liability under this section. Promises to make
future payments shall not be credited against liability under this
section.
(3) Any payments by the
employer to a third party trustee, such as premiums for health benefits or
payments to a defined contribution plan, on behalf of and attributable to the
employee for the period of the violation.
(4) Any liability paid by the employer under
any applicable Federal law governing notification of mass layoffs, plant
closings, relocations, or covered reductions in work hours.
(5) In an administrative proceeding by the
commissioner, any liability paid by the employer prior to the commissioner's
determination as the result of a private action brought under this
act.
(6) In a private action
brought under this act, any liability paid by the employer in an administrative
proceeding by the commissioner prior to the adjudication of such private
action.
(d) Any
liability incurred by an employer under subdivision (a) of this section with
respect to a defined benefit pension plan may be reduced by crediting the
employee with service for all purposes under such a plan for the period of the
violation.
(e) The period of the
violation, for which the employer is liable to each employee, begins on the
date of the employee's employment loss and continues up to 90 days after the
date the employee received notice. Where the employer failed to provide notice,
the period of the violation is 90 days. Where the employer claims exemption
from the notice requirements under one of the exceptions provided for in the
act, the commissioner will consider all information obtained during the
investigation and determine when it would have been practicable for the
employer to provide notice, if at all.
(f) A WARN Act violation may be shared with
other public entities making fitness, responsible contractor, or due diligence
inquiries.
