WARN For Jobseekers: Frequently Asked Questions

My employer has temporarily closed. Was I supposed to receive notice under the WARN Act?

Refer to Sections § 921-1.1 Definitions (f) Employment Loss and § 921-3.1 Extension of a mass layoff period.

Employee protections under the WARN Act apply to those who suffer an employment loss. A layoff or furlough that is temporary may not be an employment loss for WARN Act purposes. Under the Act, an employee who is laid off does not suffer an employment loss unless the layoff extends beyond a consecutive six-month period. Therefore, a temporary layoff of 6 months or less does not trigger the need for the employer to issue a WARN Act notice.

However, if the layoff lasts for more than a consecutive six-month period, employees would be considered to have experienced an employment loss and would have been entitled to notice before the layoff unless it was not reasonably foreseeable at the time of the initial layoff that the layoff would extend beyond six months. If a layoff is extended beyond a consecutive six-month period due to business circumstances, notice is required when it becomes reasonably foreseeable that the extension is required.

My employer has permanently closed but did not provide a 90-day notice stating that the closing was due to unforeseeable business circumstances. Was I supposed to be provided notice under the WARN Act?

Refer to Sections § 921-6.1 Exceptions, Generally; § 921-6.2 Faltering Company; § 921-6.3  Unforeseeable Business Circumstances; § 921-6.4 Natural Disaster; § 921-6.5 Strikes or Lockouts; § 921-6.6 Eligibility for Exception; and Part § 921-7.1 Powers of the Commissioner

Under the WARN Act, employers can claim an exception to the 90-day notice requirement for unforeseeable business circumstances. The “unforeseeable business circumstances” exception applies to plant closings, mass layoffs, relocations, or covered reduction in work hours caused by business circumstances that were not reasonably foreseeable at the time that 90-day notice would have been required.

Employers that fail to file a WARN Notice would obligate the Commissioner of Labor to enforce penalties under provisions of the State WARN Act. The Act provides for a civil penalty of $500 for each day of the employer’s violation. Employers in violation are also liable for back pay and other benefits for up to 60 days of the violation.

The Act provides the Commissioner of Labor with the authority to enforce the provisions of the law through administrative proceeding and gives affected employees a state cause of action for an employer’s violation of the Article. The Act also provides the Commissioner with the authority to reduce the employer’s liability and reduce the civil penalty if it is determined that the employer had reasonable grounds for the violation and acted in good faith.

My employer is talking about temporarily closing the office. Will we get a WARN notice if there are only 35 employees? Will I get a WARN Act notice if my employer is a non-profit association?

Refer to Sections § 921-1.1 Definitions (e) Employer, and § 921-1.1 Definitions (l) Part-time employee.

Generally, WARN Act notice requirements apply to employers of 50 or more full-time employees. A WARN Act-covered employer is one that employs:

1. 50 or more employees (not counting employees who are part-time – see below for more information on who is considered part-time); or
2. 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).

My employer sent WARN Notices by email because the business is currently closed. Is that allowed?

Refer to Section Part § 921-2.2 Service of Notice.

The regulations implementing the WARN Act state that: “a reasonable and timely method of delivery… designed to ensure its receipt” is an acceptable form of notice. A WARN notice sent via email must still be specific to the individual employee and comply with all requirements of the WARN Act statute and regulations regarding written notifications.

I believe my rights under the WARN Act were violated by my employer. Can the Department of Labor force my employer to comply or otherwise enforce the provisions of the WARN Act?

Refer to Section § 921-7.1 Powers of the Commissioner.

Employers that fail to file a WARN Notice would obligate the Commissioner of Labor to enforce penalties under provisions of the State WARN Act.  The Act provides for a civil penalty of $500 for each day of the employer’s violation. Employers in violation are also liable for back pay and other benefits for up to 60 days of the violation.

The Act provides the Commissioner of Labor with the authority to enforce the provisions of the law through administrative proceeding and gives affected employees a state cause of action for an employer’s violation of the Article. The Act also provides the Commissioner with the authority to reduce the employer’s liability and reduce the civil penalty if it is determined that the employer had reasonable grounds for the violation and acted in good faith.

Can an employer legally force employees to relocate for work? Does an employer have to provide three (3) months’ notice to relocate or find another job?

Refer to Sections § 921-1.1 Definitions (n) Relocation and §921-4.1 (a) Transfers.

Relocation means the removal of all or substantially all of the industrial or commercial operations of an employer to a different location fifty miles or more away from the original site of operation where 25 or more employees (excluding part-time employees), suffer an employment loss. Relocation of substantially all of the operations of an employer shall include the relocation of an entire unit, product line, division or other segment of the employer's operation.

Notice is not required when:

1. An employer offers to transfer an employee to a different site of employment within a reasonable commuting distance (defined below) with no more than a six-month break in employment, regardless of whether the employee accepts such employment; or
2. An employer offers to transfer the employee to any other site of employment regardless of distance with no more than a six-month break in employment and the employee accepts within thirty days of the offer or of the closing or layoff, whichever is later.

(Reasonable commuting distance is the distance an individual could be reasonably expected to commute to their job and is determined only for purposes of transfers. Reasonable commuting distance will vary with local conditions with consideration given to the geographic accessibility of the place of work, the quality of the roads, customarily available transportation, and the usual travel time, provided however, in no event shall such distance exceed that which can be reasonably traveled in one and one-half hours when the site of employment is being moved to a location within the City of New York or on Long Island, or one hour when the site of employment is being moved to any other location in the state.)

If an employer conducts a layoff or plant closing, is the employer supposed to pay the employees something from all the years that they worked for them?

If there was no written or oral policy or agreement, New York State Labor Law does not require an employer to provide severance pay.

After a layoff, can an employer take an employee’s final paycheck for premiums for health insurance?

No. Please refer to New York State Labor Law §195-4.3 For the Benefit of the Employee and Part 195 Deductions from Wages.

Can an employer legally terminate employees and then pay the vacation buyout as if the employees are all on two weeks’ vacation, but are terminated?

Please refer to your employee handbook concerning vacation pay upon separation.

I lost my job or am temporarily laid off. What do I do now?

If you have worked in New York State, you may be eligible to receive Unemployment Insurance benefits.

I lost my job due to a mass layoff or closure and I need assistance with my job search. Where can I find help?

Workers impacted by layoff or closure are eligible to receive job search assistance through their local Rapid Response team. To find out more and locate your local team, visit Rapid Response Services for Jobseekers.