On July 9, 2010, the New York State Department of Labor filed new regulations implementing the New York State Worker Adjustment and Retraining Notification (NYS WARN) Act. The NYS WARN Act requires “covered employers” provide affected employees with 90 days notice in the event of a covered plant closing, mass layoff or relocation. For more information on the requirements of NYS WARN, see our previous newsletters dated January 2009 and March 2010.
The new NYS WARN regulations supersede and replace the former regulations filed in February, 2010 and readopted in May
The following are some of the major changes reflected in the updated regulations:
- In reaching the determination of whether an employer meets the threshold 50 employees for purposes of establishing NYS WARN coverage, the point in time at which the number of employees is to be measured is the date the first notice is required to be given.
- The NYSDOL has revised the specific language concerning unemployment insurance, job training and re-insurance services that must be included in the notices sent to affected employees and their unions.
- If, after notice has been given, an employer decides that its operations will continue and that the announced WARN event will not occur, the employer must give a “notice of rescission” as soon as possible thereafter. The notice of rescission must include both a reference to the earlier notice and a reason why the WARN event is no longer required, and must be sent to all of the parties who were required to receive the original notice.
- When an employer asserts a defense in mitigation or exemption of the requirements of NYS WARN (e.g., unforeseeable business circumstances, faltering company or natural disaster), the employer must provide documentation in support of the claimed exemption.
- Employers who fail to comply with NYS WARN are able to avoid civil penalties by paying each affected employee the total amount for which the employer is liable (including back pay and all fringe benefits) within three weeks from the employee’s date of layoff. However, paying employees their regular wages and benefits over the period of violation (that exceeds three weeks) will not exempt an employer from the civil penalty. Furthermore, the required language that must be included in the notice to employees when such payment is made has also been slightly revised.
- The Commissioner of Labor cannot issue an order or determination addressing any NYS WARN violations without having first held a hearing, unless the employer has waived its right to a hearing pursuant to a settlement upon terms acceptable to the Commissioner.
The updated NYS WARN regulations can be found at the NYSDOL’s website.
Affirmative Defense to Harassment Unavailable Under NYC law
As management-sided labor and employment attorneys, we constantly stress the importance of maintaining and enforcing comprehensive anti-harassment/discrimination policies and procedures.
One of the major reasons for doing so is to preserve the availability of the “Faragher/Ellerth affirmative defense” in the event the employer gets sued for creating a “hostile work environment.” This affirmative defense allows employers to avoid vicarious liability under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights law for the hostile work environment created by a supervisor so long as the employer can show that (1) it took reasonable care to prevent and correct harassment, and (2) the plaintiff unreasonably failed to complain or use the procedure.
However, in Zakrzewska v. New School, 2010 NY Slip Op 3796 (N.Y. 2010), New York State’s highest court ruled that the Faragher/Ellerth affirmative defense does not apply to claims brought under the New York City Human Rights Law. As New York City continues to become exceedingly employee-friendly, it is now more important than ever that New York City employers ensure their anti-harassment/discrimination policies and procedures are updated, and that all employees are trained accordingly.
And remember —all is not lost. While employers may not be able to escape vicarious liability using the Faragher/Ellerth affirmative defense, New York City law does allow for an employer to use a similar defense to reduce its damages once it has been found liable.