Current through Register Vol. 46, No. 12, March 20, 2024
(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.
(i) Calculation for employees
receiving hourly based pay. 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 hours worked over the same three-year period. The final rate of compensation
is calculated by dividing the amount received by the employee in their last
paycheck prior to termination divided by the number of hours worked.
(ii) Calculation for employees receiving pay
other than hourly based pay. 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 their last
paycheck prior to termination divided by the number of days worked. 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 their current employer through a
merger or consolidation of their former employer with/into their current
employer, such employee's history of wage and benefit payments from their prior
employer shall be treated as if such wages and benefits were earned with their
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.
(4) Where the commissioner determines that an
employer has failed to provide sufficient wage, hour, or benefit information to
calculate such employer's liability in accordance with the methodologies
outlined in this section, the commissioner may use alternative methodologies
using any available data, information, and statistics to calculate such
employer's liability.
(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.
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 paragraph (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 violation of the Act may be shared with
other public entities making fitness, responsible contractor, or due diligence
inquiries.
(g) Payments in lieu of
notice of separation or layoff.
(1) Amounts
paid or payable by an employer to an individual in lieu of notice of separation
or layoff, except for payments related to an employer's violation of the Act,
shall be treated as wages with respect to the period of notice, provided that
the following conditions are met:
(i) There
must be an employment agreement or a uniformly applied company policy that
requires that the employing unit give the employee a definite period of notice
before a layoff or separation; and
(ii) The employee must be laid off or
separated without the required notice; and
(iii) The employing unit must pay the
employee a sum equal to the employee's regular wages and the value of the costs
of any benefits, or an amount computed in accordance with a formula based on
the employee's past earnings and benefits costs, for the required period of the
notice.
(2) Amounts paid
or payable by an employer to an individual in lieu of notice of separation or
layoff that do not satisfy the conditions set forth in paragraph (1) of this
subdivision shall be treated as severance pay except for payments that qualify
as vacation pay in connection with a layoff or separation and are not related
to an employer's liability for violation of the Act.
