NY State Senate Bill 2019-S8562

Senate Bill S8562

2019-2020 Legislative Session

Relates to providing reforms to the New York state worker adjustment and retraining notification act

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Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 16, 2020	referred to rules

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2019-S8562 (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Labor Law
Laws Affected:: Amd §§860-a - 860-e & 860-g, Lab L

2019-S8562 (ACTIVE) - Summary

Removes the exclusion of part-time employees from certain definitions relating to employment and expanding the definition of employer; removes certain exclusions for employer notice requirements for the closing of a facility; removes the discretionary reduction of penalties for employers for certain acts or omissions concerning notice requirements for mass layoffs, relocations or employment loss; removes the maximum time period for determining back pay and other liabilities for certain employees who experience employment loss

2019-S8562 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8562

SPONSOR: MAYER
 
TITLE OF BILL:

An act to amend the labor law, in relation to removing the exclusion of
part-time employees from certain definitions relating to employment and
expanding the definition of employer; removing certain exclusions for
employer notice requirements for the closing of a facility; removing the
discretionary reduction of penalties for employers for certain acts or
omissions concerning notice requirements for mass layoffs, relocations
or employment loss; removing the maximum time period for determining
back pay and other liabilities for certain employees who experience
employment loss; and allowing the attorney general to take certain
action to assist certain employees in receiving back pay and other
liabilities

 
TITLE OF BILL:

An act to amend the labor law, in relation to removing the exclusion of
part-time employees from certain definitions relating to employment and
expanding the definition of employer; removing certain exclusions for

employer notice requirements for the closing of a facility; removing the
discretionary reduction of penalties for employers for certain acts or
omissions concerning notice requirements for mass layoffs, relocations
or employment loss; removing the maximum time period for determining
back pay and other liabilities for certain employees who experience
employment loss; and allowing the attorney general to take certain
action to assist certain employees in receiving back pay and other
liabilities

 
PURPOSE OR GENERAL IDEA OF BILL:

Reform the WARN Act to strengthen protections for workers and eliminate
exceptions that favor employers.

 
SUMMARY OF PROVISIONS:

Section 1 amends the definitions section to:

  (a) define the term "affiliate"
  (b) change the definition of "employment loss" to include workers who
resign in anticipation of a facility closing, relocation or mass layoff;
  (c) change the definition of "employer" to include affiliates of the
employer;
  (d) change the definition of "mass layoff" to include employees not
physically stationed at the facility and reduce the employee threshold
test to twenty or more employees-;
  (e) strike the definition of "part-time employee"; and
  (f) change the definition of "plant closing" to re-title it as "facil-
ity closing", to reduce the employee threshold test to twenty or more
employees, and to eliminate the part-time employee exception.

Section 2 conforms certain provisions to recognize the change from the
definition of "plant closing" to "facility closing."

Section 3 eliminates the faltering business and unforeseeability
exceptions to the notice requirements and associated liability and

penalties for violations, and adds a new exception for declared states
of emergency.

Section 4 amends section 860-d to require that an employer specify an
expected date of recall at the outset of the layoff in order to rely on
the unforeseeability exception with respect to mass layoffs of less than
six months which are extended to more than six months.

Section 5 conforms certain provisions to recognize the change from the
definition of "plant closing" to "facility closing."

Section 6:

  (a) removes the sixty-day cap on the number of days of back pay for
which an employer is liable when there is a WARN Act violation;
  (b) excludes from the list of payments which reduce an employer's back
pay liability any payments from an employer to a third party or trustee
(such as health benefits or pension benefits);
  (c) strikes current paragraph 6 of section 860-g of the labor law,
which allows the commissioner of the Department of Labor to reduce an
employer's back pay liability to its workers upon application by the
employer to prove that the violation was in good faith and that the
employer had reasonable grounds for believing that its actions or omis-
sions did not constitute a violation; and
  (d) provides that the attorney general may enforce provisions of the
WARN Act that establish an employer's liability to employees when there
is a WARN Act violation.

Section 7 sets the effective date.

 
JUSTIFICATION:

The WARN Act is a fundamental workers' rights law which recognizes the
dramatic consequences of mass layoffs for workers' livelihoods. By
requiring that significant prior notice be given to workers of facility
closings and mass layoffs, instituting rights to back pay in such situ-
ations, and setting penalties for violations, workers are given some
measure of protection when businesses close or implement major job cuts.
Notwithstanding these rights, many mass layoffs nonetheless result in
violations for which employees are not properly compensated.

Unfortunately, current law allows parties with financial interests in a
business to use corporate shields or other sophisticated tactics to
avoid some of the obligations of the WARN Act that fall on the employer,
even if those financial actors effectively exercise control over the
business. Not infrequently, control of the employer in these situations
is in the hands of one or more entities controlled by private equity
firms, banks, or other financial interests who are not in danger of
failing to pay their medical bills because they have lost their sole
source of income. Such investors may, in fact, stand to gain financially
as a result of job cuts. These types of business strategies have been
well-documented in examinations of the private equity industry.

A series of high profile cases in recent years has highlighted the
financialization of companies by private equity firms and other strate-
gic investors in order to extract investor payouts from businesses,
often to the detriment of the businesses themselves. Such behavior may
involve significant reductions in spending on personnel, the conse-
quences of which are disproportionately borne by the non-management
workers.  Some of the most recent high-profile examples of major layoff
situations resulting from private equity activity include vast layoffs
by Toys "R" Us and Sears in 2018, and Shopko and Payless Shoes in 2019.
Specific examples in New York include layoffs resulting from the closure
of Tops Friendly Markets stores in 2018 and the closing of the Doral
Arrowwood Resort in 2020.

This last example is emblematic of the shortcomings of New York's WARN
Act. The Doral Arrowwood, located in the Village of Rye Brook, informed
its approximately 275 employees on Christmas Eve of 2019 that it would
be shutting down on January 12, 2020, just 19 days later. The New York
State WARN Act requires 90 days' notice in such situations. These
employees, many of whom worked for the hotel for decades, were faced
with the prospect of being unemployed in short order, putting most of
them at significant personal financial risk.  Although they were due
back pay, the complicated nature of the legal proceedings regarding the
ownership of the hotel, and the loopholes and exceptions present in the
WARN Act, allowed numerous opportunities for the lenders and other
financial investors to challenge workers' WARN Act rights. The hotel had
been subject to the recent entrance of a new lender who asserted vari-
ously that the workers should not receive back pay when the remaining
assets of the company were distributed to the various claimants due to
certain WARN Act loopholes, or in the alternate, that other financial
investors were responsible. While the complicated ownership and lending
structure was being sorted out in a foreclosure proceeding, the employ-
ees were forced to the sidelines, uncertain if they would receive
anything.

There are both federal and state WARN Act statutes. The current New York
WARN Act in some instances goes beyond what the federal WARN Act
provides. But it needs to go much further. The economic reverberations
ensuing upon the onset of the COVID-19 pandemic and the resulting mass
unemployment only underscore the fragility of many workers' financial
situations and the need for augmented protections.  Furthermore, private
equity firms have been identified as actively looking for companies
which are in financial distress due to the COVID-19 pandemic. Given this
anticipated surge in private equity deals and evidence of past wrongs
done by strategic investors, the state has a heightened duty to protect
against further economic loss to workers in these difficult times.

At the same time, the sudden economic effects of the COVID-19 emergency
on businesses are akin to the consequences of a severe natural disaster,
but currently there is no clear exception in the case of layoffs direct-
ly caused by a pandemic.  This bill makes a number of commonsense chang-
es to the New York State WARN Act to renew this state's commitment to
protecting workers in situations involving major employment losses.
Among the most notable of these changes are the following:

1.  
ELIMINATE DEPARTMENT OF LABOR DISCRETION TO REDUCE EMPLOYER BACK PAY
LIABILITY.ct.

Current law allows an employer the opportunity to prove to the Depart-
ment of Labor that a WARN Act violation was in good faith and that the
employer had reasonable grounds for believing that its actions or omis-
sions did not constitute a violation. If the Department of Labor is
convinced that such an argument has merit, it may reduce the liability
of the employer to its workers.
This provision is contrary to the goal of protecting workers embodied by
the WARN Act and should be removed. Whether the violation was in good
faith or bad faith, the workers still suffer the same harm and therefore
should still receive the same compensation.

The bill does leave intact this exception with respect to fines by the
Department of Labor for violations, as these fines are separate and
apart from an employer's liability to its employees for back pay.

2.  
ELIMINATE FALTERING BUSINESS AND LACK OF FORESEEABILITY EXCEPTIONS;
ADD EXCEPTION FOR DECLARED STATES OF EMERGENCY.ct.

Workers are the parties most harmed when there is a mass layoff, but
that harm is magnified when they do not receive the legally required
notice of such an event, regardless of the reason for that violation.
Recognizing this, the WARN Act provides for back pay to those workers
when they do not receive adequate notice.

In the context of the WARN Act, a business should not be exempt from
liability for back pay in the case of a facility closing because the
business was faltering and trying to find funding at the time when
notice was required. The same applies for unforeseeable events. In
neither case is the harm to the worker reduced. Such provisions encour-
age disproportionate distribution of remaining resources to investors,
despite the fact that investors are more likely to be able to bear the
financial impact of the situation. The workers likely have only this one
job, which is often their sole source of income.  When weighing these
competing interests, it is proper to support those who are at the great-
est disadvantage, and for that reason these exceptions should be
removed.

On the other hand, one exception appears to fall short. The consequences
of the COVID-19 outbreak have made clear that a pandemic can be more
devastating than a flood, earthquake, or drought. The current list of
force major exceptions does not include states of emergency, but merely
refers to natural disasters. This bill corrects this inconsistency to
ensure that employers are exempted from the WARN notice requirements and
liability for noncompliance in the case of layoffs due to the COVID-19
pandemic.

3.  
REVISE THE DEFINITION OF EMPLOYER TO INCLUDE BUSINESS AFFILIATES AND
CONTROLLING INVESTORS AND LENDERS.ct.

Liability in WARN Act situations falls on the employer. Accordingly,
strategic financial actors sometimes seek to escape WARN Act liability
by setting up corporate shields in the form of a variety of multiple-en-
tity ownership structures, exerting financial pressure without formally
establishing management control, shifting significant debt to the busi-
ness, and other financial or legal measures to avoid being categorized
as the "employer" under the WARN Act. By expanding this definition to
include those entities that exert indirect control or make decisions
that ultimately lead to the mass layoff, relocation, or facility clos-
ing, we deter some of the tactics used to escape the legal obligation to
pay workers when there is a violation.

4.  
EXTEND THE REACH OF THE WARN ACT.ct.


Currently, the WARN Act only applies to employers that have 50 full-time
employees, or in the alternate, employees working, in the aggregate, at
least 2,000 hours per week. Whether an employee is part-time or full-
time, and how many total hours of employee work done for an employer
does not change the basic premise that an employee has an employment
relationship with the employer, and it may be the only job they have.
This bill recognizes this circumstance in the context of the WARN Act by
capturing those employers who would otherwise have WARN Act duties but
for the fact that their 50 or more employees do not collectively work 50
forty-hour weeks. By broadening the definition of "employee," and by
lowering the threshold for applicability, the WARN Act will cover many
more businesses than it does now, and thereby protect many more workers.

In addition, changes to the definition of "mass layoff" simplify the
determination for what is a mass layoff by reducing it to a twenty-em-
ployee test. Currently, a mass layoff involves a situation in which a
facility does not close down, but (i) at least 33%- of the workforce
(which must constitute 25 or more employees) is laid off, or (ii) 250 or
more employees are laid off. For example, an employer of 70 employees
could lay off 24 employees--more than one-third of its workforce--and
yet not satisfy the test of a mass layoff. Perhaps more dramatic is a
situation in which a very large employer (750 employees or more) could
lay off up to 249 employees without such situation constituting a mass
layoff.

As a final matter, this bill clarifies that many workers that are not
necessarily stationed at a particular job site nonetheless have their
employment tied to its operations, and may lose their job as a conse-
quence.

5.  
EXTEND THE MAXIMUM PERIOD OF LIABILITY TO THE FULL 90-DAY NOTICE
PERIOD.ct.

Although the New York State WARN Act requires employers to provide at
least 90 days of notice prior to a mass layoff, relocation, or employ-
ment loss, an employer's back pay liability to its workers for a
violation is currently limited to only 60 days. As a result, workers
receive the same back pay whether the notice is 60 days late or 90 days
late. This results in a perverse situation in which an employer has much
less incentive to give any notice at all if it plans a mass layoff,
relocation, or employment loss within 30 days.  The civil penalty of
$500 per day for 30 days ($15,000 total) is a pittance to many employ-
ers, even those in enough financial trouble to consider a workforce
reduction.

Of more practical importance to the workers in many situations is the
fact that they are suddenly without a paycheck, and therefore without a
means to make rent, feed their families, or pay their medical bills. In
this context, while an additional 30 days of violation means little
financially to the employer under current law, those 30 days are crit-
ical to a worker who needs to immediately find a new job, especially
because this issue only occurs in circumstances in which notice is given
less than 30 days from the date on which the worker will be laid off.
With such limited time to find new employment, every day counts.

By extending the number of days of back pay for which an employer is
liable to the full 90-day notice period, this bill will eliminate the
current mismatch of incentives by linking the employer's financial
liability for back pay to the full period of violation, thereby encour-
aging employers to give as much notice as possible at a time when it is
arguably most crucial to their workers.

6.  
PROVIDE FOR EXPLICIT ATTORNEY GENERAL ENFORCEMENT OF BACK PAY
LIABILITY.ct.

One of the most significant barriers to workers receiving the back pay
they are due in WARN Act situations is that the employer is in financial
trouble, and a number of more organized claimants with greater resources
(e.g. banks) are also vying for what value remains in the business.
Currently, while the workers, labor representatives, and local munici-
palities can bring an action and the Department of Labor can use admin-
istrative proceedings to address the issue of back pay, the Attorney
General does not have express authority to step in to enforce the law to
protect workers. Because the scales are tilted against the workers in
this way, the state should be given all the tools it needs to move expe-
ditiously in order to enforce workers' rights to back pay.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.

2019-S8562 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8562
 
                             I N  S E N A T E
 
                               June 16, 2020
                                ___________
 
 Introduced  by  Sen.  MAYER  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the labor law, in relation to removing the exclusion  of
   part-time  employees  from  certain definitions relating to employment
   and expanding the definition of employer; removing certain  exclusions
   for employer notice requirements for the closing of a facility; remov-
   ing the discretionary reduction of penalties for employers for certain
   acts  or  omissions  concerning  notice requirements for mass layoffs,
   relocations or employment loss; removing the maximum time  period  for
   determining   back pay and other liabilities for certain employees who
   experience employment loss; and allowing the attorney general to  take
   certain  action  to assist certain employees in receiving back pay and
   other liabilities
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 860-a of the labor law, as added by chapter 475 of
 the laws of 2008, is amended to read as follows:
   § 860-a. Definitions. As used in this  article,  the  following  terms
 shall have the following meanings:
   1. "Affected employees" means employees who may reasonably be expected
 to  experience an employment loss as a consequence of a proposed [plant]
 FACILITY closing or mass layoff by their employer.
   2. "AFFILIATE" MEANS A PERSON THAT DIRECTLY, OR INDIRECTLY THROUGH ONE
 OR MORE INTERMEDIARIES, CONTROLS, OR  IS  CONTROLLED  BY,  OR  IS  UNDER
 COMMON CONTROL WITH, A SPECIFIED PERSON.
   3.  "ASSOCIATE", WHEN USED TO INDICATE A RELATIONSHIP WITH ANY PERSON,
 MEANS:
   (A) ANY ENTITY OF WHICH SUCH PERSON IS AN OFFICER OR  PARTNER  OR  IS,
 DIRECTLY  OR  INDIRECTLY, THE BENEFICIAL OWNER OF TEN PERCENT OR MORE OF
 ANY CLASS OF VOTING SECURITIES;
   (B) ANY TRUST OR OTHER ESTATE IN WHICH SUCH PERSON HAS  A  SUBSTANTIAL
 BENEFICIAL INTEREST OR AS TO WHICH SUCH PERSON SERVES AS TRUSTEE OR IN A
 SIMILAR FIDUCIARY CAPACITY; AND
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD15578-07-0

 S. 8562                             2
 
   (C)  ANY  RELATIVE  OR  SPOUSE OF SUCH PERSON, OR ANY RELATIVE OF SUCH
 SPOUSE, WHO HAS THE SAME HOME AS SUCH PERSON.
   4. "BENEFICIAL OWNER", WHEN USED WITH RESPECT TO ANY SECURITIES, MEANS
 A PERSON:
   (A)  THAT,  INDIVIDUALLY  OR  WITH OR THROUGH ANY OF ITS AFFILIATES OR
 ASSOCIATES, BENEFICIALLY OWNS SUCH SECURITIES, DIRECTLY  OR  INDIRECTLY;
 OR
   (B)  THAT,  INDIVIDUALLY  OR  WITH OR THROUGH ANY OF ITS AFFILIATES OR
 ASSOCIATES, HAS (I) THE RIGHT TO ACQUIRE SUCH SECURITIES,  WHETHER  SUCH
 RIGHT  IS  EXERCISABLE  IMMEDIATELY  OR  ONLY AFTER THE PASSAGE OF TIME,
 PURSUANT TO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING, WHETHER OR  NOT
 IN  WRITING, OR UPON THE EXERCISE OF CONVERSION RIGHTS, EXCHANGE RIGHTS,
 WARRANTS OR OPTIONS, OR OTHERWISE; OR (II) THE RIGHT TO VOTE SUCH  SECU-
 RITIES  PURSUANT TO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING, WHETHER
 OR NOT IN WRITING; PROVIDED, HOWEVER, THAT A PERSON SHALL NOT BE  DEEMED
 THE  BENEFICIAL  OWNER  OF ANY SECURITIES UNDER THIS SUBPARAGRAPH IF THE
 AGREEMENT, ARRANGEMENT OR UNDERSTANDING  TO  VOTE  SUCH  SECURITIES  (1)
 ARISES  SOLELY  FROM A REVOCABLE PROXY OR CONSENT GIVEN IN RESPONSE TO A
 PROXY OR CONSENT SOLICITATION MADE IN  ACCORDANCE  WITH  THE  APPLICABLE
 RULES AND REGULATIONS UNDER THE EXCHANGE ACT AND (2) IS NOT THEN REPORT-
 ABLE  ON  A  SCHEDULE  13D  UNDER THE EXCHANGE ACT, OR ANY COMPARABLE OR
 SUCCESSOR REPORT; OR
   (C) THAT HAS ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING,  WHETHER  OR
 NOT  IN  WRITING,  FOR THE PURPOSE OF ACQUIRING, HOLDING, VOTING, EXCEPT
 VOTING PURSUANT TO A REVOCABLE PROXY OR CONSENT AS DESCRIBED IN SUBPARA-
 GRAPH (II) OF PARAGRAPH (B) OF THIS SUBDIVISION, OR  DISPOSING  OF  SUCH
 SECURITIES WITH ANY OTHER PERSON THAT BENEFICIALLY OWNS, OR WHOSE AFFIL-
 IATES OR ASSOCIATES BENEFICIALLY OWN, DIRECTLY OR INDIRECTLY, SUCH SECU-
 RITIES.
   5.  "CONTROL",  INCLUDING THE TERMS "CONTROLLING", "CONTROLLED BY" AND
 "UNDER COMMON CONTROL WITH", MEANS THE POSSESSION, DIRECTLY OR INDIRECT-
 LY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF (A) THE  MANAGEMENT
 AND POLICIES OF A PERSON, (B) THE OPERATION OF A PERSON, OR (C) SUBSTAN-
 TIALLY  ALL  OF THE ASSETS OF A PERSON, WHETHER THROUGH THE OWNERSHIP OF
 VOTING SECURITIES, BY CONTRACT,  OR  OTHERWISE.  A  PERSON'S  BENEFICIAL
 OWNERSHIP OF TEN PERCENT OR MORE OF AN ENTITY'S OUTSTANDING VOTING SECU-
 RITIES  SHALL  CREATE A PRESUMPTION THAT SUCH PERSON HAS CONTROL OF SUCH
 ENTITY.  NOTWITHSTANDING THE FOREGOING, A PERSON SHALL NOT BE DEEMED  TO
 HAVE  CONTROL  OF  AN  ENTITY IF SUCH PERSON HOLDS VOTING SECURITIES, IN
 GOOD FAITH AND NOT FOR THE PURPOSE OF CIRCUMVENTING THIS SECTION, AS  AN
 AGENT, BANK, BROKER, NOMINEE, CUSTODIAN OR TRUSTEE FOR ONE OR MORE BENE-
 FICIAL OWNERS WHO DO NOT INDIVIDUALLY OR AS A GROUP HAVE CONTROL OF SUCH
 ENTITY.
   6. "Employment loss" means:
   (a)  an  employment  termination,  other  than  a discharge for cause,
 voluntary departure OTHER THAN IN ANTICIPATION OF AN ANNOUNCED  FACILITY
 CLOSING OR MASS LAYOFF, or retirement;
   (b) a mass layoff exceeding six months;
   (c)  a  reduction  in  hours of work of more than fifty percent during
 each month of any consecutive six-month period.
   "Employment loss" shall not result under circumstances where a [plant]
 FACILITY closing or mass layoff is  the  result  of  the  relocation  or
 consolidation  of part or all of the employer's business and, before the
 closing or mass layoff, the employer offers to transfer the employee  to
 a  different  site  of employment within a reasonable commuting distance
 with no more than a six-month  break  in  employment,  or  the  employer

 S. 8562                             3
 
 offers to transfer the employee to any other site of employment, regard-
 less 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 mass layoff, whichever is later.
   [3.] 7. "Employer" means any business enterprise that employs fifty or
 more employees[, excluding part-time employees, or fifty or more employ-
 ees  that  work  in the aggregate at least two thousand hours per week].
 "EMPLOYER" SHALL INCLUDE ANY AFFILIATE OF AN EMPLOYER. "Employer"  shall
 not  include  the  federal or state government or any of their political
 subdivisions, including any unit  of  local  government  or  any  school
 district.
   [4.]  8. "EXCHANGE ACT" MEANS THE ACT OF CONGRESS KNOWN AS THE SECURI-
 TIES EXCHANGE ACT OF 1934, AS THE SAME HAS  BEEN  OR  HEREAFTER  MAY  BE
 AMENDED FROM TIME TO TIME.
   9. "Mass layoff" means a reduction in force which:
   (a) is not the result of a [plant] FACILITY closing; and
   (b) results in an employment loss FOR THOSE WORKING at OR REPORTING TO
 a single site of employment during any thirty-day period for[:
   (i)  at  least  thirty-three percent of the employees (excluding part-
 time employees); and
   (ii) at least twenty-five employees (excluding  part-time  employees);
 or
   (iii)  at  least  two  hundred  fifty  employees  (excluding part-time
 employees)] TWENTY OR MORE EMPLOYEES.
   [5. "Part-time employee" means an employee  who  is  employed  for  an
 average of fewer than twenty hours per week or who has been employed for
 fewer  than  six of the twelve months preceding the date on which notice
 is required.
   6. "Plant] 10. "FACILITY closing" means  the  permanent  or  temporary
 shutdown  of  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 the single site of employment during
 any thirty-day period for [twenty-five] TWENTY or more employees [(other
 than part-time employees)].
   [7.] 11. "Representative" means an exclusive representative within the
 meaning of section 9(a) or 8(f) of the National Labor Relations Act  (29
 U.S.C.  159(a), 158(f)) or section 2 of the Railway Labor Act (45 U.S.C.
 152).
   [8.] 12. "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.
   13. "PERSON" MEANS ANY INDIVIDUAL,  PARTNERSHIP,  ASSOCIATION,  CORPO-
 RATION,  COOPERATIVE,  LIMITED  LIABILITY COMPANY, FIRM, TRUST, OR OTHER
 ENTITY.
   § 2. Subdivisions 5 and 7 of section 860-b of the labor law, as  added
 by chapter 475 of the laws of 2008, are amended to read as follows:
   5. In the case of a sale of part or all of an employer's business, the
 seller shall be responsible for providing notice for any [plant] FACILI-
 TY  closing  or  mass  layoff in accordance with this section, up to and
 including the effective date of the sale. After the  effective  date  of
 the  sale  of part or all of an employer's business, the purchaser shall
 be responsible for providing notice for any [plant] FACILITY closing  or
 mass  layoff  in accordance with this section. Notwithstanding any other
 provision of this article, any person who is an employee of  the  seller
 as  of the effective date of the sale shall be considered an employee of
 the purchaser immediately after the effective date of the sale.

 S. 8562                             4
 
   7. Nothing set forth herein shall be read to prevent an  employer  who
 is  not required to comply with the notice requirements of this section,
 to the extent possible, to provide  notice  to  its  employees  about  a
 proposal  to  close  a  [plant] FACILITY or permanently reduce its work-
 force.
   §  3.  Subdivision  1  of  section 860-c of the labor law, as added by
 chapter 475 of the laws of 2008, is amended to read as follows:
   1. In the case of a  [plant]  FACILITY  closing  OR  MASS  LAYOFF,  an
 employer is not required to comply with the notice requirement in subdi-
 vision one of section eight hundred sixty-b of this article if:
   (a)[(i)  at the time the notice would have been required, the employer
 was actively seeking capital or business; and
   (ii) the capital or business sought, if obtained, would  have  enabled
 the employer to avoid or postpone the relocation or termination; and
   (iii)  the  employer reasonably and in good faith believed that giving
 the notice required by subdivision one of section eight hundred  sixty-b
 of  this  article  would  have precluded the employer from obtaining the
 needed capital or business;
   (b) the need for a notice was not reasonably foreseeable at  the  time
 the notice would have been required;
   (c)]  the  [plant]  FACILITY closing is of a temporary facility or the
 [plant] FACILITY closing or mass layoff is the result of the  completion
 of  a particular project or undertaking, and the affected employees were
 hired with the understanding that their employment was  limited  to  the
 duration of the facility or project or undertaking;
   [(d)]  (B)  the  [plant] FACILITY closing or mass layoff is due to any
 form of natural disaster, such as a flood, earthquake, or drought, OR  A
 FEDERAL, STATE OR LOCAL STATE OF EMERGENCY HAS BEEN DECLARED; or
   [(e)]  (C) the FACILITY closing or mass layoff constitutes a strike or
 constitutes a lockout not intended to evade  the  requirements  of  this
 article.  Nothing  in  this  article  shall require an employer to serve
 written notice when permanently replacing a person who is deemed  to  be
 an  economic  striker  under the National Labor Relations Act (29 U.S.C.
 151 et seq.). Nothing in this article shall be  deemed  to  validate  or
 invalidate  any judicial or administrative ruling relating to the hiring
 of permanent replacements for economic strikers under the National Labor
 Relations Act.
   § 4. The opening paragraph of section 860-d of the labor law, as added
 by chapter 475 of the laws of 2008, is amended to read as follows:
   A mass layoff of more than  six  months  which,  at  its  outset,  was
 announced  to  be  a mass layoff of six months or less WITH AN ANNOUNCED
 EXPECTED DATE OF RECALL shall be treated as  an  employment  loss  under
 this article unless:
   §  5.  Section  860-e of the labor law, as added by chapter 475 of the
 laws of 2008, is amended to read as follows:
   § 860-e. Determinations with respect to employment loss. In  determin-
 ing  whether  a  [plant] FACILITY closing or mass layoff has occurred or
 will occur, employment losses for two or more groups of employees  at  a
 single site of employment, each of which is less than the minimum number
 of employees specified in [subdivisions four or six] SUBDIVISION NINE OR
 TEN  of  section  eight hundred sixty-a of this article but which in the
 aggregate meet or exceed that minimum number set forth in such  subdivi-
 sions,  and which occur within any ninety-day period shall be considered
 to be a [plant] FACILITY closing or  mass  layoff  unless  the  employer
 demonstrates  that  the employment losses are the result of separate and

 S. 8562                             5
 
 distinct actions and causes and are not an attempt by  the  employer  to
 evade the requirements of this article.
   § 6.  Subdivisions 2, 4, 6, 7 and 8 of section 860-g of the labor law,
 as  added  by  chapter  475  of the laws of 2008, are amended to read as
 follows:
   2. Back pay and other liability under this section is  calculated  for
 the period of the employer's violation, [up to a maximum of sixty days,]
 or  one-half  the  number  of days that the employee was employed by the
 employer, whichever period is smaller.
   4. The amount of an employer's liability under subdivision one of this
 section, shall be reduced by the following:
   (a) Any wages, except vacation moneys accrued before the period of the
 employer's violation, paid by the employer to the  employee  during  the
 period of the employer's violation.
   (b)  Any  voluntary and unconditional payments made by the employer to
 the employee that were not required to satisfy any legal obligation.
   (c) Any [payments by the employer to a third party or trustee, such as
 premiums for health benefits  or  payments  to  a  defined  contribution
 pension  plan,  on  behalf  of  and attributable to the employee for the
 period of the violation.
   (d) Any] liability paid by the employer under any  applicable  federal
 law  governing  notification of mass layoffs, [plant] FACILITY closings,
 or relocations.
   [(e)] (D) In an administrative proceeding  by  the  commissioner,  any
 liability paid by the employer prior to the commissioner's determination
 as the result of a private action brought under this article.
   [(f)]  (E) In a private action brought under this article, any liabil-
 ity paid by the employer in an administrative proceeding by the  commis-
 sioner prior to the adjudication of such private action.
   6. [If an employer proves to the satisfaction of the commissioner that
 the  act  or  omission  that violated this article was in good faith and
 that the employer had reasonable grounds for believing that the  act  or
 omission  was  not a violation of this article, the commissioner may, in
 his or her discretion, reduce the amount of liability  provided  for  in
 this  section.  In determining the amount of such reduction, the commis-
 sioner shall consider (a) the size of the employer;  (b)  the  hardships
 imposed  on  employees by the violation; (c) any efforts by the employer
 to mitigate the violation;  and  (d)  the  grounds  for  the  employer's
 belief.
   7.]  An aggrieved employee, local government, or an employee represen-
 tative seeking to establish liability against an employer  may  bring  a
 civil  action on behalf of the person, other persons similarly situated,
 or both, in any court of competent jurisdiction, within the time  period
 provided  by  section two hundred thirteen of the civil practice law and
 rules. The court may award reasonable attorneys' fees as part  of  costs
 to any plaintiff who prevails in a civil action brought under this arti-
 cle.  If  the  court  determines that an employer conducted a reasonable
 investigation in good faith, and had reasonable grounds to believe  that
 its  conduct  was  not a violation of this article, the court may reduce
 the amount of any penalty it would otherwise impose against the employer
 under this article.
   [8.] 7. Neither the commissioner nor any court shall have the authori-
 ty to enjoin a [plant] FACILITY  closing,  relocation,  or  mass  layoff
 under  this  article;  PROVIDED, HOWEVER, WHENEVER AN EMPLOYER IS LIABLE
 PURSUANT TO SUBDIVISION ONE OF THIS SECTION, APPLICATION MAY BE MADE  BY
 THE  ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK

 S. 8562                             6
 
 TO A COURT OR JUSTICE HAVING JURISDICTION BY  A  SPECIAL  PROCEEDING  TO
 ISSUE  AN  INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN
 FIVE DAYS, TO ENJOIN AND RESTRAIN THE ACTIONS OF SUCH EMPLOYER  OR  TAKE
 SUCH  OTHER ACTIONS THE ATTORNEY GENERAL MAY DEEM APPROPRIATE TO ENFORCE
 THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION.   IN CONNECTION  WITH
 ANY  SUCH  PROPOSED  APPLICATION,  THE ATTORNEY GENERAL IS AUTHORIZED TO
 TAKE PROOF AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND  TO  ISSUE
 SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
   8.  NO  WAIVERS  OF  LIABILITY UNDER THIS ARTICLE SHALL BE ENFORCEABLE
 UNLESS SUPERVISED BY A COURT, THE COMMISSIONER OR CERTIFIED CLASS  COUN-
 SEL.
   § 7. This act shall take effect immediately.

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Senate Bill S8562

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Sponsored By

Shelley B. Mayer

Archive: Last Bill Status - In Senate Committee Rules Committee

co-Sponsors

Andrew Gounardes

Brad Hoylman-Sigal

Timothy M. Kennedy

Jessica Ramos

2019-S8562 (ACTIVE) - Details

2019-S8562 (ACTIVE) - Summary

2019-S8562 (ACTIVE) - Sponsor Memo

2019-S8562 (ACTIVE) - Bill Text download pdf

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