Employees In New York have certain rights when their employer conducts a mass layoff, closes a facility, or otherwise cuts a significant number of jobs. Unfortunately, those rights don’t include an entitlement to keep their jobs or be considered for other positions at the company. However, employees do have the right to a certain amount of notice before a plant closing or large-scale layoff. Employees are entitled to damages if the employer doesn’t give sufficient notice.
These rights are guaranteed by the federal Worker Adjustment and Retraining Notification (WARN) Act. Almost half of the states have similar laws, and New York is among them. New York law also requires advance notice of layoffs, plant closings, and relocations; employees who don’t receive the notice required by state law are entitled to damages.
This article provides basic information on the rights of New York employees under the federal WARN Act and New York’s mini-WARN law. For more information on your rights when you are laid off (including when you should receive your final paycheck and how to continue your health benefits), see the articles at our Losing or Leaving Your Job page.
Which Employers Are Covered?
The coverage rules under federal and state law differ.
Employers Covered by WARN
The WARN Act requires certain larger employers to give advance notice of mass layoffs or plant closings that will result in a certain number or percentage of employees losing their jobs. Employers are covered only if they have at least 100 full-time employees or at least 100 employees who work a combined 4,000 hours or more per week. (Full-time employees are defined as those who work at least 20 hours a week and have been employed for at least six of the 12 months ending on the date when notice must be given under WARN.)
Employers Covered by New York Law
Under New York law, employers are covered if they have at least 50 employees.
Which Layoffs Are Covered?
Not every layoff or plant closing is covered by federal or state law.
Federal WARN Act
WARN applies only to plant closings and mass layoffs.
- A plant closing is the shutdown of a single site of employment, or at least one facility or operating unit within a single site of employment, which results in job loss for 50 or more full-time employees during any 30-day period. A single site of employment is simply one geographical location of an employer’s operations, such as a building, an office suite, or a group of buildings that form a campus or industrial park. Even work areas that are physically separate can be a single employment site if they are reasonably close together, used for the same purpose, and share the same staff and equipment.
- A mass layoff is a reduction in force resulting in job loss at a single site of employment for 500 or more full-time employees, or for 50 to 499 full-time employees, if the number of employees laid off makes up at least 33% of the employer’s active workforce.
WARN also applies to plant closings or mass layoffs that occur in stages over 90 days. This rule is intended to prevent employers from getting around WARN’s notice requirements by conducting a series of smaller layoffs over time.
New York Law
New York’s mini-WARN law applies to:
- mass layoffs, in which at least 250 full-time employees, or at least 25 full-time employees that represent at least a third of the full-time employees at that establishment, lose their jobs
- permanent or temporary plant closing that results in job loss for at least 25 full-time employees, and
- relocation (when the employer moves its entire operation at least 50 miles away).
What Notice Is Required?
Both WARN and New York law include notice requirements.
If a layoff or plant closing is covered by WARN, employees who will lose their jobs are entitled to notice 60 days in advance. Under New York’s mini-WARN, employees are entitled to notice 90 days in advance. (Employees who are union members need not receive individual notice; instead, the employer must notify their bargaining reps, who are expected to pass the information along to the affected employees.)
The notice must provide specified information about the planned layoffs, including whether they are expected to be temporary or permanent, the expected date when the layoffs will begin and when the employee will receive a termination letter, and whether the employee will have bumping rights.
Exceptions Under WARN
In some situations, an employer either does not have to give notice at all or can give less than 60 days’ notice. WARN doesn’t require employers to give notice if they are laying off temporary or seasonal employees, or the layoffs are the result of temporary projects that are completed, as long as the employees knew when hired that the jobs were for a limited time. WARN also doesn’t apply to job losses occasioned by strikes or lockouts.
Under WARN, an employer can give less than 60 days notice if one of these exceptions applies (the employer must still give as much notice as possible and explain why it couldn’t give the full 60 days that would otherwise be required):
- Unforeseeable business circumstances. If the business circumstances leading to the plant closing or layoff were not reasonably foreseeable when the employer should have given 60 days’ notice, a shorter notice period is allowed.
- Faltering company. If a company is struggling financially when it should have given 60 days’ notice, it can give a shorter period of notice. However, the company must show that it was actively seeking business or money that would have allowed it to postpone or avoid the plant closing altogether, and that it reasonably believed, in good faith, that giving 60 days’ notice would have precluded it from obtaining the necessary business or money. This exception applies only to plant closings, not mass layoffs.
- Natural disasters. If the layoff or plant closing results from a natural disaster, the employer is allowed to give less than 60 days’ notice.
New York’s mini-WARN law recognizes all of these exceptions, too. In addition, New York employers need not give notice of job losses due to physical calamity, acts of terrorism, or war.
If Your Rights Have Been Violated
If you believe your rights have been violated, you should consult with an experienced New York employment lawyer. WARN includes the right to attorney fees if you win, so it provides an incentive for lawyers to take strong cases. However, the damages available to any one employee are relatively low. Therefore, a lawyer may advise either trying to negotiate a settlement or going forward on behalf of all affected employees, as part of a class action lawsuit.