WARN For Businesses: Frequently Asked Questions

Worker Adjustment and Retraining Notification FAQs for Businesses

Question	Answer
Am I considered a covered employer under the WARN Act?	Refer to Section § 921-1.1 (e) Definitions. Generally, WARN Act notice requirements apply to employers of 50 or more full-time employees. A WARN Act covered employer is one that employs: 50 or more employees (not counting employees who are part-time; see below for more information on who is considered part-time); or 50 or more employees (including part-time employees) who, in the aggregate, work at least 2,000 hours per week (including overtime hours earned on a regular basis). A “part-time” employee for WARN Act coverage is someone who is employed for an average of fewer than twenty (20) hours per week or who has been employed for fewer than six (6) of the twelve (12) months preceding the date on which notice is required. The WARN Act notice requirements apply to private for-profit businesses, nonprofit organizations, and public service corporations (when the corporation is organized separately from regular government).
How does a business determine the thresholds for filing notice?	Refer to Section § 921-1.1 Definitions (f) Employment Loss. A WARN notice must be filed in the event of an employment loss. The term employment loss means: or: An employment termination, other than a discharge for cause, voluntary departure, or retirement. A mass layoff, as defined in § 921-1.1(i), that exceeds six months in duration; or A reduction in hours of work of more than fifty percent (50%) during each month of any consecutive six-month period for either: At least twenty-five (25) employees constituting at least 33% of the employees at the site (excluding part-time employees); or At least two hundred (250) employees (excluding part-time employees) regardless of whether they comprise thirty-three percent (33%) of the employees at the site (excluding part-time employees). A plant closing as defined in § 921-1.1(m) affecting twenty-five (25) or more employees, excluding part-time employees.
How does a business determine whether notice is required?	Refer to Section §921-2.1 Notice, generally; (e) Scope of employment action. In deciding whether notice is required, the employer shall: Look ahead 30 days and behind 30 days to determine whether employment actions both taken and planned will, in the aggregate, for any 30-day period, reach the minimum numbers for a plant closing or a mass layoff and, therefore, trigger the notice requirement: and Look ahead 90 days and behind 90 days from the date of each employment action to determine whether actions creating employment losses, both taken and planned, each of which separately is not of sufficient size to trigger the notice requirement will in the aggregate, for any 90-day period, reach the minimum thresholds to trigger the notice requirement for a plant closing, mass layoff, relocation, or covered reduction in work hours. Employees previously given notice according to the 30-day look ahead/look behind period shall not be aggregated with other employees suffering employment losses during a given 90-day period in order to require that notice be given to the employees who would not otherwise be covered. Below are examples of 30-day vs 90-day review periods, based on an employer with one hundred (100) employees: Example #1: On Day 1, thirty-five (35) employees are laid off. On Day 35, ten (10) employees are laid off. On Day 85, the remaining fifty-five (55) employees are laid off. Both the groups laid off on Day 1 and Day 85 constitute groups of sufficient size to constitute 30-day layoff groups. Accordingly, the other 10 do not get included in either WARN group. Example #2: On Day 1, thirty-five (35) employees are laid off. On Day 31, ten (10) employees are laid off. On Day 41, ten (10) employees are laid off. On Day 51, ten (10) employees are laid off. On Day 71, ten (10) employees are laid off. On Day 81, ten (10) employees are laid off. On Day 90, ten (10) employees are laid off. In this example, there is only one 30-day period in which a minimum of 25 employees are laid off and those employees constitute one-third of the workforce of 100. However, the 60 employees who are laid off between day 31 and day 90 do constitute such a group within the 90-day time frame. Accordingly, all of the layoffs are covered by WARN.
How should a business provide notice to the Commissioner of Labor?	Refer to Section § 921-2.2 Service of notice; (e) Notice to the Commissioner of Labor must be provided electronically in the manner prescribed by the Commissioner of Labor. Businesses are strongly encouraged to submit WARN notices through the online WARN Portal. If a business needs an alternative way to submit a notice, they should email [email protected]. WARN Revisions – Revisions to a WARN filing must be made within 90 days of the notice date sent to the Commissioner of Labor. Revisions can be emailed to [email protected]. WARN Retractions – To rescind a previously submitted WARN notice, please send letter on company letterhead to [email protected] that complies with section 921-3.3 of the NYS WARN Regulations.
How are “furloughed” employees classified for WARN purposes?	Refer to Section § 921-1.1 Definitions (f) (1) (iii) (D)Temporary/Permanent Layoff. An employee on a furlough that lasts a duration of less than a consecutive six-month period, is considered a “temporary layoff”. An employee on a furlough that lasts beyond a consecutive six-month period, is considered a “permanent layoff”.
I am a business who temporarily furloughed or laid off my employees expected to last a few months. However, due to changing circumstances, I am concerned that the layoff will need to be extended beyond six months and may become permanent. When do I need to provide my employees with a WARN Notice?	Refer to Sections § 921-1.1 Definitions (f) Employment Loss, § 921-3.1 Extension of a mass layoff period and § 921-6.1 Exceptions. Generally, when a layoff is extended beyond a consecutive six-month period, the layoff is treated as an “employment loss” from the date the layoff started. Notice shall be given at the time it becomes reasonably foreseeable that the extension beyond a consecutive six-month period will be necessary. A temporary layoff or furlough without notice that is initially expected to last six months or less but later is extended beyond 6 months may violate the Act unless: The extension is due to business circumstances not reasonably foreseeable at the time of the initial layoff; and Notice is given when it becomes reasonably foreseeable that the extension is required. This means that an employer who previously announced and carried out a short-term layoff (6 months or less) and later extends the layoff or furlough beyond 6 months due to business circumstances not reasonably foreseeable at the time of the initial layoff, is required to give notice at the time it becomes reasonably foreseeable that the extension is required. A layoff extending beyond 6 months for any other reason is treated as an employment loss from the date the layoff or furlough starts.
If I am considering a temporary layoff or furlough, do I need to provide employees with a notice under the WARN Act?	Refer to Sections § 921-1.1 Definitions (f) Employment Loss, § 921-3.1 Extension of a mass layoff period and and § 921-6.1 Exceptions. Generally, an employee on a temporary layoff or furlough that lasts a duration of less than a consecutive six-month period, is considered a “temporary layoff”. A WARN Act Notice must be given when there is an “employment loss”, as defined under the Act. A temporary layoff or furlough that lasts longer than a consecutive six-month period is considered an employment loss. A temporary layoff or furlough without notice that is initially expected to last six months or less but later is extended beyond 6 months may violate the Act unless: The extension is due to business circumstances not reasonably foreseeable at the time of the initial layoff; and Notice is given when it becomes reasonably foreseeable that the extension is required. This means that an employer who previously announced and carried out a short-term layoff (6 months or less) and later extends the layoff or furlough beyond 6 months due to business circumstances not reasonably foreseeable at the time of the initial layoff, is required to give notice at the time it becomes reasonably foreseeable that the extension is required. A layoff extending beyond 6 months for any other reason is treated as an employment loss from the date the layoff or furlough starts.
What if a business is not able to provide timely notice?	Refer to Section § 921-6.1 Exceptions. Generally, if an employer is unable to provide notice in a timely manner as a result of circumstances described in this section, it shall still provide as much notice as is practicable accompanied by a statement of the basis for reducing the notice period.
Can a business filing notice as a result of a “mass layoff” claim the “faltering company” exception?	Refer to Section § 921-6.2 Faltering company. This exception applies only to plant closings as defined under the Act.
What are the eligibility requirements for an employer to claim an exception?	Refer to Section § 921-6.6 Eligibility for Exception. An employer cannot be eligible for a reduction or excusal of the notice requirement in the Act according to any exception explained in this section without a determination by the Department of Labor that the employer established all elements of the claimed exception. Submitting Request. The employer must present a request for consideration on eligibility for a claimed exception in addition to the required notice to be provided to the Commissioner. The request shall be submitted within ten business days of the required notice being provided to the Commissioner, unless a request for an extension of time is approved by the Commissioner.