Federal & State Regulations | WARN - New York | J. J. Keller® Compliance Network

State Info

Summary of differences between federal and state regulations

On June 21, 2023, New York State strengthened its WARN Act regulations to address the post-pandemic employment climate. The regulations clarify how remote work impacts WARN Act compliance and simplifies language to ensure businesses better understand their obligations.

Number of employees: In reaching a determination whether an employer meets the threshold of fifty (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.

Sale of a business: A promise of employment by the [buyer] purchasing employer to an employee does not relieve the [seller] selling employer of the obligation to provide notice. If the transfer of employees is a good faith condition of the purchase agreement, and that condition is not upheld by the purchasing employer, the purchasing employer is obligated to provide notice and the selling employer is relieved of such obligation.

Additional notice to be given to (besides affected employees): The chief elected official of the unit or units of local government where the site of employment is located; The school district or districts where the site of employment is located; The locality that provide(s) police, firefighting, emergency medical or ambulance services, or other emergency services, to the locale where the site of employment is located. Where two or more villages, towns, cities, counties, or a combination therefore provide the above services, each locality that provides the services must be notified; and Any other individual or entity identified in the Act.

In November 2020, and effective immediately, the governor signed a bill that amended the New York WARN law to add to the list of government entities that must be notified of qualifying mass layoffs.

Under the prior law, notice was due to the State Department of Labor, each affected employee, each union representing affected employees, and the local Workforce Investment board. As amended, New York WARN now requires that, in addition to these recipients, WARN notices be sent to the chief elected official of the unit or units of local government and the school district or districts in which the WARN event will occur, and to each locality that provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment where the WARN even t is occurring. The purpose of this change is to advise local governments of the potential loss of tax revenue and possibility of health and safety dangers that may occur on abandoned properties.

The state of New York defines what a plant closing as the permanent or temporary shutdown or 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 at a single site of employment during any 30-day period for 25 or more employees excluding any part-time employees.

There are also employer retraining requirements.

Effective February 1, 2009, an employer may not order a mass layoff, relocation, or employment loss, unless, at least 90 days before the order takes effect, the employer gives written notice of the order to the following:

affected employees and the representatives of affected employees;
the department; and
the local workforce investment boards established pursuant to the federal Workforce Investment Act for the locality in which the mass layoff, relocation, or employment loss will occur.

An employer required to give notice of any mass layoff, relocation, or employment loss shall include in its notice the elements required by the federal Worker Adjustment and Retraining Notification Act.

“Employer” means any business enterprise, whether for-profit or not-for-profit, that employs 50 or more employees within New York State, excluding part-time employees, or 50 or more employees within the state that work in aggregate at least 2,000 hours per week.

“Mass layoff” means a reduction in force which:

is not the result of a plant closing; and
results in an employment loss at a single site of employment during any 30-day period for:
- at least 33% of the employees (excluding part-time employees); and
- at least 25 employees (excluding part-time employees); or
- at least 250 employees (excluding part-time employees).

“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 twelve months preceding the date on which notice is required.

See New York Labor Law, Article 25-A “New York State Worker Adjustment And Retraining Notification Act” linked below for complete information.

When the state laws do not apply, then the federal rule might. Employers having 100 or more employees (not counting employees who worked less than six months of the last 12 months and not counting employees who average less than 20 hours a week) are subject to the federal Worker Adjustment and Retraining Notification Act (WARN). Employers are required to provide 60 days’ advance notice of covered plant closings and covered mass layoffs. This notice must be given either to the affected workers or their representatives (e.g., a labor union) plus the State dislocated worker unit and the appropriate unit of local government.